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Andy Mao: [In progress] — notwithstanding the number of elder abuse, neglect and exploitation cases around the country that occur each year, the number of elder abuse prosecutions varied widely around the country.

This esteemed panel today will be focusing on perhaps some of the reasons for that variation and some of the factors that go into elder abuse prosecutions.

To my immediate right is Dr. Shelly Jackson. Dr. Shelly Jackson is an assistant professor at the University of Virginia in the Department of Psychiatry and Neurobehavioral Sciences. She has written and authored extensively on a wide array of issues involving child abuse, domestic violence. Recently, she has focused a lot of her attention on — focused and presented on issues involving elder abuse and mistreatment as well as financial exploitation. Dr. Jackson will be focusing today on a study, an NIJ-funded study, on some of the factors that go into a prosecutor's decision on whether to prosecute an elder abuse case.

To Dr. Jackson's right is Lori Stiegel. She is the senior attorney of the American Bar Association's Commission on Law and Aging and has specialized in elder abuse since 1995. Lori was a member of the National Research Council's study panel on Risk and Prevalence of Elder Abuse and has authored and co-authored extensively on elder abuse, a number of articles including Elder Abuse Detection and Intervention: A Collaborative Approach, Elder Abuse in the State Courts: Three Curricula for Judges and Court Staff, as well as The Power of Attorney Abuse: What States Can Do About It. Lori will be focusing on some innovative court models that have tailored themselves to deal with elder abuse cases and will be focusing on that link in the elder justice chain.

Last but not least, to my far right is Page Ulrey. Page is a senior prosecuting attorney with the King County Prosecutor's Office in Seattle, Washington. She started there in 1998 and in 2001 was appointed to the newly-created position of elder abuse prosecutor in the criminal division. During her time there, she founded and chaired the King County Elder Abuse Council and the Criminal Mistreatment Review Panel. Since 2007, Page has worked as the elder abuse prosecutor in the Economic Crimes Unit and has focused on cases involving vulnerable adult financial abuse, neglect and sexual assault.

With that, I am going to turn it over to Dr. Jackson, who will start us off on her presentation.

Shelly Jackson: OK. Good morning. I am going to be talking about some barriers and facilitators in prosecuting elder abuse in a pilot study that we've done. I want to acknowledge my colleague, Tom Hafemeister, who's the co PI on this project. He's also my husband, and he and my kids were upstairs still sleeping when I left.

[Laughter.]

Jackson: And then, of course, we'd like to thank NIJ for funding the project.

Now, before I get into the prosecution part of this, I wanted to tell you about how we became interested in prosecution. We were funded a few years ago to study financial exploitation of the elderly, and what we did was we looked at financial exploitation by comparing it to other types of abuse, like physical abuse, neglect and what we call “hybrid” cases. And that's where there's financial exploitation and something else going on. And you can see by the title here that we were interested in the dynamics, the risk factors, and when we conceptualized this study, we were thinking about Adult Protective Services as society's response. Well, we were gathering our data, we were running our analyses, and we found out that 18 percent of the cases in our study were prosecuted and received a conviction for elder abuse. They might have been prosecuted on something else, but for elder abuse, it was 18 percent of the cases. But the physical abuse cases were more likely than expected to be prosecuted compared to those other four types of abuse that was going on.

We also learned at that time that our caseworkers were finding it very difficult to get prosecutors to help them out in those cases. So almost three-fourths of our caseworkers said, “You know, if I go to law enforcement, they're less likely to help me in a financial exploitation case than a physical abuse or a neglect kind of case.” But then just in general, they were extremely frustrated with how prosecutors were responding to their cases. And so we engaged them in a conversation about why that might be, and you would hear things like, “Well, the elder actually told her son that she could — her son that he could write checks out of her checkbook,” or you've got power of attorney issues.

Elders make poor witnesses. If it is not $100,000 or more, prosecutors aren't going to take the case. And these are things that you would hear in the literature as well when you do a review of the literature; they're really reflected there as well. And that got us to thinking about what's going on here, and it seemed to us that the caseworkers have this perception and belief; they really believe that prosecutors aren't going to take their cases. So that leads them to think, “Well, why bother? I'm not going to send it over to the prosecutor anyway,” and this was particularly true in financial exploitation because what was happening with those kinds of cases is if there's physical abuse and financial exploitation, they might pursue physical abuse thinking, “Oh, prosecutors might take that, but I'm going to drop the financial part because nobody's going to do anything about that anyway.”

And then this is really anecdotal, but then we would go to conferences, and I would hear prosecutors say, “You know, elder abuse isn't a problem in my jurisdiction. Nobody ever sends me those kinds of cases,” and then we're thinking wait a minute, what's going on here, there is some kind of miscommunication between these players. And that led us to go back and think we were initially thinking about society's response in terms of Adult Protective Services, but we said, “Wow! What prosecutors are doing is directly influencing what our caseworkers are doing, what they're willing to pursue,” and so we went back to NIJ and asked whether we could expand our study a little bit to try and start figuring out what prosecutors are thinking when elder abuse cases come their way.

And so we've done a pilot study looking at some barriers and facilitators, and that's what I'll present the rest of the presentation on.

OK. So this is a pilot study, and we had interviews with prosecutors in four states, Virginia, California, Illinois and Pennsylvania, and I'll tell you why those states were chosen. But we had 17 prosecutors, and as I said, this is a pilot study. They had 13 years of experience on average, so, in general, they had some experience in prosecuting. Almost half of them had a hundred or more cases, which I can't even imagine what that's like, but maybe you can speak to that.

And almost three-fourths of them were not what you call a dedicated — I'm not sure exactly what the term is, but elder abuse is not the only thing they do. So, in almost three-fourths of the cases, they had 25 percent or less of their caseload was elder abuse.

OK. And then we created an interview instrument based on a review of the literature, some of the things we talked about before, but many, many other things, demographics and experience and then these facilitators and barriers to prosecution.

Now, we had five UVA law graduates. These were, I will confess, students of my husband's whose jobs were either deferred — this was during the economic downturn. People weren't walking out into great jobs. Their jobs were either deferred or they didn't have job, but they were going back to their states, to California, Illinois, Pennsylvania, and that's why we had those states. I mean, it was a convenient sample for sure.

So, once they would initially get the prosecutor in the office to agree to an interview, then we just used a snowball technique, “Is there somebody else that you know that we can interview about this?” And, on average, the interviews were 40 minutes. We tried to get them shorter, but we couldn't. There was a lot to talk about.

OK. So these are some of our results, and the first thing we wanted to know is whether it mattered to prosecutors if the case came from Adult Protective Services, whether the referral came from law enforcement or didn't matter, and in two-thirds of the cases, it didn't matter, but where there was a preference, it was for law enforcement, and that, of course has to do with evidence. They're generally seen as better at collecting evidence, and this is kind of the theme that we're going to hear throughout this, it depends on the evidence, and I think Page is going to speak to that as well.

OK. And then we asked them is elder abuse more difficult, the same, or easier to prosecute than other kinds of crimes? And I think it's 56 percent said that it is more difficult. And when we were talking to our caseworkers, over half of them thought that these were difficult cases to prosecute.

And then we got into why that might be. So we're going to look at a number of factors that might influence why these are harder, and one of the things we were interested in is whether the organizational climate of the office, the agency that the prosecutor worked in, whether they take these cases seriously, and 94 percent of them do take them seriously. A third, a quarter of them thought that the prosecutors in their office were even more willing to take an elder abuse case than other kinds of crime, and that they were more likely to receive a conviction in about a third of those cases. And that had to do with things like sympathy for the elder.

And then almost half of them perceived, anyway, that they were rewarded for taking elder abuse cases. And Pennsylvania was significantly more likely to feel that way, and Virginia was significantly less likely to feel rewarded for taking elder abuse cases.

OK. And then we were interested in prosecutor training, and 41 percent of our prosecutors received less training in elder abuse compared to other kinds of trainings that they might receive, so training might be an issue.

And then we have another, a range of issues that we asked them about, and we just put them all on one slide here. So you often hear elders make bad witnesses, and you can see 93 percent of our prosecutors felt like elders make poor witnesses; the elder is unavailable to be a witness. There is weak evidence in these cases. Perpetrators acted within their rights, and that is often what you'll hear with power of attorney, right? There's nothing. She signed it. He can do what he wants to with it, “he said/she said” kinds of cases.

So, over half of the prosecutors thought that these were real issues that they have to deal with. Less so, though, were uncooperative third parties, it's not perceived as a crime, the prosecutor is unqualified, or there's insufficient resources in the office. And we saw before that the offices that we talked to, anyway, generally take these cases seriously.

And then we asked about a range of victim characteristics as well, whether these would increase the willingness to prosecute a case. So, willing to testify, significant harm was done to the elder. The elder has the ability to testify. They press charges or the elder made the complaint or the elder is not deceased, and what do most of those have to do with, except for the harm, they really have to do with victim cooperation. And I think that's what prosecutors are seeing when they think about are they willing to press charges, are they willing to testify, that that signals to prosecutors whether the elder is going to be a cooperative witness. Now, less influential is whether the perpetrator is a stranger or a close relative.

And then some personal characteristics of the victim had to do with things like mental health, whether the victim is living — we just saw that — whether they're articulate, good cognitive status, their physical health. These were a little less endorsed than the previous group of characteristics, but still there is a third to a half that consider these important factors as well.

What we did find, though, is social network, education, age and gender were not endorsed by prosecutors, but you can kind of see that those would be things like sexism, ageism, classism, and so you would probably not expect those to be endorsed, I think, but probably related to some of those other characteristics, I would guess.

OK. We also asked them an open-ended question, whether there were any perpetrator characteristics that might be influential in deciding whether to take these cases, and generally, they said no. And here, again, it depends on the evidence.

One person said family members are less likely to be prosecuted, and another said nonfamily members are more likely to be prosecuted. And, in our study, we definitely found that relatives were less likely to be prosecuted, which is not surprising.

OK. We were also interested in law enforcement because very often the case comes to prosecutors through law enforcement, and all of our prosecutors thought that law enforcement take elder abuse cases seriously.

And, in Virginia, we heard some variations on that, and so that's why we decided to ask that question. But the prosecutors in our study thought they take elder abuse cases seriously and that they receive good evidence from prosecutors. And almost three-fourths of them, of the prosecutors, said that APS is involved in their cases, and when they are involved, 85 percent said that they receive really helpful assistance from Adult Protective Services, that they like Adult Protective Services being involved in their cases. And part of that has to do with kind of, you know, figuratively speaking, but holding the elder's hand through the criminal justice process, that they have much greater skill in doing that than some others.

OK. So we also asked them, though, are there any ways that law enforcement and APS might improve what they're doing, and, of course, they had some suggestions, such as collaboration, and this is one of my big themes. I've been in the world of child advocacy centers for over a decade, and I'm very fond of the multidisciplinary approach. And I'm going to come back to that at the end. I think it's one of the keys.

I thought it was really interesting, though, that they thought that law enforcement and APS should be more proactive, given that because the APS at least perceives they don't take those cases, they don't bring them to the prosecutors, document everything. And then also they thought law enforcement needed some training in interviewing individuals with cognitive deficits, and we heard from our caseworkers that law enforcement is very impatient when they interview elders. They like everything in a nice, neat package, and it takes elders a little longer to kind of get the story out, and they get frustrated and leave.

And then the limits of power of attorney authority, and I think this really has to do with Virginia. Virginia just passed a uniform power of attorney. Lori wrote that great, great, great article — or monograph? Anyway, on power of attorney, and so Virginia just passed that. It goes into effect July 1. So that will be less of an issue for us, but it's going to take a lot of training because we heard from our caseworkers that power of attorney cases, law enforcement doesn't do anything with those. So it's going to take some education to get them thinking in that direction.

We were also interested in whether we needed statutory reform or whether those statutes were working fine, and 81 percent thought that their statutes were helpful to them. Virginia, however, was significantly less likely to find their statutes helpful, and I think that has to do with their financial exploitation, lack of statute.

OK. We also wondered if there were some legal constraints that prosecutors were working within, and, of course, there are. There's the confrontation clause, and with our elders who become incapacitated for various reasons from cognitive deficits to death, confrontation clause becomes a big issue and also a lack of hearsay exception, so if we can't get the elder up on the stand, are there any ways that we can get information from other people into the courtroom. So those are two pretty huge barriers.

Power of attorney laws, I just mentioned, and narrow neglect statutes, and we're going to look at neglect in a minute specifically, and those seem to be really tough cases.

OK. And we have identified a few court reforms, and we were interested in whether prosecutors thought these were helpful, expedited trials, enhanced penalties for the perpetrators, of course, priority on the docket and accommodation for elders. And those were generally, over 60 percent, over two-thirds thought that those were really useful reforms. But you can see the expedited trials, priority on the docket, that's getting the elder in there as fast as we can, so that we can make sure we get them up, get the case in the courtroom.

And then, in terms of investigation and prosecution reforms, we've got some things going on there. Multidisciplinary teams were endorsed by, I think it was, 88 percent of the prosecutors. As I said, I'm a big fan of the specially trained prosecutors, equally powerful, specialists in the office, in the prosecutor's office, to aid investigation, the availability of social service agencies, these forensic centers — have you all heard of elder forensic centers? — which is another kind of multidisciplinary approach, and vertical prosecution.

But what you can see, I think what a lot of those reforms have to do with, is getting elder cooperation, victim cooperation, right? If you've got vertical prosecution, you've got the same person kind of bonding with the elder and helping them through the system. So I think that's what is at the base of a lot of these reforms, is trying to get our elders.

What I thought was interesting is no-drop policies and mandatory arrests were not nearly as endorsed, but I will tell you, in our study, with the physical abuse cases that were prosecuted, it's not that our elders wanted those cases prosecuted. They didn't, none of them — seventy-five percent of our elders didn't want prosecutors involved at all — and particularly the physical abuse, but what happened is they're in this brawl with their perpetrator, and they call law enforcement and they come out, and the elder says, “No, I'm sorry. I don't really want to do this,” but law enforcement says, “You either press charges or we will, but we're not dropping it.” And those are the cases that ended up the most likely to be prosecuted. It's because there was law enforcement involvement. I know we can argue the merits of whether that's a good thing or bad thing, but that's the explanation for why these cases were prosecuted.

OK. And then we asked them open-ended questions about prosecutor — about other kinds of reforms, and I think this is reflective of what we've just been talking about, that we need some hearsay exceptions in those cases where elders become incapacitated or die. And this one, I'm hoping Page or Lori can speak to a little bit more, but the appointment of a defense attorney and then cross-examine the elder before the defendant's been identified and before the elder dies, but you still can't cross-examine that.

Page Ulrey: Well, individual defendant is entitled to a right to confront the witnesses against him. It's not just a generic right.

Jackson: Yeah. Yeah. So it didn't seem like that would work, but, OK, good.

And then several people identified public education — that we need to get our elders educated about elder abuse and make them proactive in their own safety.

And then some statutory reforms, power of attorney laws, that was probably Virginia attorneys or prosecutors; widen the category of neglect and financial exploitation and harsher penalties.

OK. Now, if we do look at whether prosecutors think these types of elder abuse are harder or easier or the same to prosecute, 73 percent said neglect are harder to prosecute than other kinds of crimes, 56 percent thought financial exploitation were harder to prosecute than other kinds of crimes, and 43 percent thought physical abuse were harder, but you can see for physical abuse, actually, about half of them also thought that they were easier to prosecute.

So the neglect which we just heard somebody saying that those are really difficult cases to prosecute is reflected here as well. But, as I mentioned in the beginning, we were very interested in financial exploitation, and so what we did is we tried to dig a little deeper into financial exploitation.

Oh, I forgot. This slide just shows that Virginia was more likely than the other states to find financial exploitation very difficult to prosecute, and, again, that's because they don't have any kind of statute that allows them to pursue those kinds of cases.

OK. Now, we also heard from our caseworkers that prosecutors are unlikely to take their cases unless it involves a lot of money, but the prosecutors in our study said there's really no minimum amount required. It depends on the evidence, of course. But 20 percent of the prosecutors felt weaker to pursue a financial exploitation case, and this is what I was thinking earlier. Our caseworkers also thought that financial exploitation cases were harder for them to investigate as well. There's some different kinds of issues involved with financial exploitation.

And I also mentioned what we call “hybrid cases” or co-occurring financial exploitation and something else. Our caseworkers thought that about 50 percent of the cases that they get involved co-occurring financial exploitation and some other kind of abuse, but it looks like for the prosecutors that happens in less than 25 percent of the cases that at least make it to their office.

Half of them said that really doesn't matter if there's more than one thing going on, but there were a third of them who thought that it was more willing, and I think that that suggests that they were more willing to take those kinds of cases because there's a lot going on in those kinds of families, and we found with our hybrid cases that they were the most intractable cases. They involved family members. The abuse has gone on for decades, and it's really hard to get out of those kinds of cases, get out of that situation.

OK. And then some factors in deciding whether to pursue financial exploitation. Some of that had to do with the amount of evidence, but, generally, we heard that there's a lack of documentation, a lack of corroboration, and a lack of victim participation, that they're less likely to get involved in these kinds of cases. But one prosecutor kind of summed up what everybody else was saying, which is, “I have to prove the elements of the crime to the degree required by law,” and that's what it comes down to, and that the evidence in financial exploitation cases tends to be weaker.

OK. What are the goals in pursuing financial exploitation? We want to hold perpetrators accountable. We want to make sure that they don't harm others. We want to restore the victim's loss, and we want to make sure — we want to send a message to society that this is not OK to do, so deter other people from committing these kinds of crimes and then provide a sense of justice. So you can see that over two-thirds of the — I think if we did this again, we'd kind of try to rank-order this a little bit because, obviously, these are good goals.

Now, back to restoring the elder's loss, though, we heard from our prosecutors that they always ask for restitution, and in 75 percent of those cases, the elder is awarded some restitution, but, indeed, less than 25 percent — I mean, the elders received less than 25 percent of what they'd been awarded, suggesting that if you were going to be financially exploited, it is very unlikely that you are going to get anything back. And that was true in our study as well. Eighty-four percent of the elders in our study got nothing, and that's not restitution. That is just of the money they lost; 84 percent received nothing back.

OK. So, my conclusions, I have five minutes, and I'm good.

So over half of our prosecutors thought that elder abuse is harder to prosecute, that it comes down to evidence. And one of the things that we're really interested in is victim cooperation and how to get victims to cooperate, and I know there's a number of pieces of evidence that you can use, but victim cooperation seems to be a stumbling block in a lot of cases.

So some of the barriers have to do with elder characteristics, prosecutor training, the legal constraints that we mentioned, and that neglect and financial exploitation seem to be particularly difficult to prosecute, but there were facilitators, elder characteristics again. They can either be a barrier or a facilitator, depending on how they come out, but APS and law enforcement involvement seems to be helpful and useful. Most state statutes are working well, and that the reforms that have been instituted — and I know Lori has written a number of articles on reforms, and that's certainly where we got a lot of these, but that they've been helpful. They are perceived by prosecutors as being useful.

OK. So, I end with this idea about a multidisciplinary response, because what we are interested in is trying to figure out how we can increase victim cooperation. And we certainly saw, as I mentioned, our elders, 75 percent of them didn't want prosecutors involved in their case at all, and one of the things that a multidisciplinary response can do is kind of help that process along, I think help the elder along. So you've got Adult Protective Services who knows how to talk to elders. They come in with a social service kind of agenda, “I'm here to help you.” Law enforcement goes in and they get the evidence that they need, and the prosecutor says, “I need this from you. I need this from you,” and I've seen this work in child advocacy centers, and I just really love the idea of using this model with elders. And I know I've been out to California to their elder forensic centers, and I've watched how the multidisciplinary approach works in those cases. It's phenomenal, and we would love to do some more research on multidisciplinary response to elder abuse.

OK. I think that's it.

Lori Stiegel: Good morning. I want to thank NIJ for funding our project and for asking me to be here today to talk about it, and thank all of you for coming and expressing your interest in this subject.

Our project entails an assessment of five court-focused elder abuse initiatives. We called them that because they're all a little bit different. One is actually a court. The other four are connected to in or just very closely connected to and involved with courts. So we just had to make up our own term to describe them, and I will tell you more about them in a while.

So, first, just to give you an overview of what I'll do in my time today is talk about our goal, how we did our project, and then for some context as well as to give you the measures that we used to assess the five projects, I'll talk about barriers to pursuit of legal remedies and guidelines for the state courts, and some of it will be what we just heard Shelly talking about, too. I'll describe the five court-focused initiatives and our findings from them and then just talk real quickly about next steps.

So, our goal, this is the long statement of the goal. Our goal was really to look at what these five projects are doing. Because there is no baseline data about any of them, and we're not doing an evaluation, but we're really looking at their processes, their structure, to some extent their outcomes, and really trying to make some assessment of whether these are good projects that should be replicated in other communities and other states.

Those of you who've been involved in the elder abuse field a lot know that because of the lack of research in the field, people come up with what they think are good ideas and often are good ideas, but then everybody is like, “Oh, we have to go do this,” and there is never any research to determine whether that's really a good idea and whether they are making a difference. So we were, to the extent that we were able to, trying to do that.

My colleague, Pam Teaster, from the University of Kentucky, was our subcontractor and co-PI on this project. She's the researcher; I'm the lawyer, so we made a good team. We had a great multidisciplinary advisory committee, and Page is actually one of the members of that advisory committee.

We used the court-recommended guidelines that Shelly talked about and that I'll talk more about a bit and some other guidelines that were created after our early project as the standards for assessing the five projects, and we've looked at an enormous amount of qualitative and less enormous amount of quantitative data for this project.

For each of the five initiatives, we identified a key informant that was usually the founder or the manager of the program. We then did a very in-depth survey with those people to get background and a lot more information than we had when we wrote the proposal about the project, how it was working, who was involved with it, and then used them to snowball and identify stakeholders in the five communities, so that we would know who to interview when we went and made our five site visits.

So we interviewed 92 stakeholders across those five sites visits. We talked to the chief judge in each community. We talked to other judges who were involved with the project. We talked to court managers, court staff, court clerks, all kinds of court people. We talked to Adult Protective Services. We talked to law enforcement if they were involved with the project. We talked to the prosecutors. We talked to public defenders. We talked to lawyers in private practice. We talked to all kinds of folks at all of those sites.

We talked to three victims as well. We certainly had hoped to talk to more, but even managing to talk to those three was quite a challenge, unfortunately.

We also reviewed court case files, and we reviewed 73 files across the five projects. And we were looking for a variety of things in doing that, and I'll talk more about that later.

I can't tell jokes, but I like cartoons. So, in starting to talk about barriers to going to court, I thought this one nicely illustrates. If you can't read it, it says, “It's bad enough being cheated out of my life savings, but what I really hate is having to get it back in small claims court.”

Older people don't like to go to court. They're very afraid of it, and younger people are, too, but I think older people are more so. Back in the mid '90s, when we did the project that developed the recommendations for state courts handling elder abuse cases, we did a research project. This was funded by the State Justice Institute, which is a quasi governmental agency that provides research and technical assistance to the state courts. And we looked at experts all across the country, including prosecutors, to the extent that there were elder abuse prosecutors in the early '90s, civil lawyers, APS, and all kinds of other folks, judges and other folks, and asked them, “Are elder abuse cases going into court? If not, why not, and what can we do to help get those cases that should be in court into court?”

So lots of barriers to the pursuit of legal remedies were identified. Now, these are the system ones. I think we often talk about the more personal ones, and Shelly talked somewhat about the more personal ones of just that fear of going to court, the embarrassment that, you know, your life savings were so small that you have to go to small claims court to get it back, but that's all the money that person had. The reluctance to get your abusers in trouble, particularly when they are your family members, the fear that intervention will result in you having a guardian appointed or ending up in a nursing home, all those are the personal barriers about going to court or reporting to APS or some other authority. These, again, are the more systemic barriers about the pursuit of legal remedies.

First, victims often just don't know what's available out there, and they don't understand what's available. So we often hear about victims who don't want their abuser prosecuted because they don't want him to go to jail, and they don't understand that judges have many other remedies besides jail that they might want, such as substance abuse or mental health treatment.

The lack of legal services — and this particularly related to civil legal services, but the lack of a lawyer to help you try to get your money back, if it's your money that has been taken, or to get a protection order to keep physical abuse from happening.

Victim difficulty just getting to court, victim difficulty sitting in court.

How many of you have ever been to court? So you know it's a zoo, right? A circus is often an apt description for it, and they have a cattle call, and, you know, lots and lots of people show up for hearings. And you have to get there at 8 or 8:30 in the morning, sort of like today, and then you can sit there for hours before your case is called. And if you are an old person who is frail or you have a medication schedule that you have to keep on or you have to eat at certain times in the day, that sort of environment can be extraordinarily difficult, if not impossible, for you to do.

I remember a case that I handled as a legal services lawyer at the beginning of my career where our client bailed, basically. We went to court, we sat there for a while, and he couldn't take it anymore and he left. And he just didn't pursue his rights because of that.

Victim fear of, ignorance of court proceedings, like I said, older people just tend to really be terrified by this process. And I think particularly when we have people in minority cultures who, whether here in the United States or in countries if they came here from other countries, had very different experiences with the court system and with legal authority maybe than white people have had here, there may be enhanced reluctance and fear of the court system.

Professionals' lack of knowledge — and that's what we heard Shelly talk about and what Page is going to focus on, I think in her comments, but certainly early in the '90s, I think this was a bigger problem than it is even now of prosecutors not have training on elder abuse. Judges didn't have training. Lawyers certainly didn't have training. This isn't stuff you learned in law school back then. You don't learn it very much in law school now, 15, 18 years later.

Where I'll probably focus my comments here is on the disparate impact of court practices. Courts like to think, and they say all the time — and we heard it during our experiences — that they treat everybody the same, and I think they really believe that they do, but the reality whether they really do or not, the reality is that treating older people the same has a disparate, more onerous impact on them than on younger people for the reasons that I just talked about. If you are reliant on public transportation and particularly on transportation for disabled people to get to court, it may literally be impossible for you to get there at 8 or 8:30 for the cattle call. I talked about the difficulty of sitting there for hours. All those things then mean that court just doesn't work for you the same way it does for a person who has a car and the ability to sit on the hard benches in the courtroom for hours at a time.

As a result of finding those things during our study in the early '90s, we developed a set of 29 recommendations for state courts handling cases involving elder abuse. These that are up here represent about half of those. I focused on pulling out the ones that were most relevant to what I was going to talk about today, and these sort of consolidate the 15.

Clearly, in our first recommendations back then were that judges, court staff, and other professionals, including prosecutors, law enforcement, lawyers, and even APS needed to have more training about elder abuse and how the court system, the judicial system needed to respond to it.

Expediting cases. So, here in 2010, Shelly is coming up with some of the same recommendations that we came up with in the early to mid '90s, but, of course, with older people who are more likely to die in the first place and maybe as a result of their abuse or exploitation or neglect, even more likely to die, expediting cases is an important issue for them.

Accommodating persons with disabilities. Some of the ways I have talked about already represented several of the recommendations. Providing emotional support and assistance, helping people get to court, explaining how it works, trying to make them less fearful to overcome that reluctance to pursue their legal remedies, to cooperate with law enforcement or prosecutors, those were several of our recommendations.

Referrals to community services. Very often, older people who have long-standing abuse problems or other problems, too, going on end up in court and have never gone to any other social services program or anything else in the community for help, and it's the court that then ends up trying to refer them to appropriate helping agencies. Well, the courts need to know more about those agencies, then, in order to do that, and that was that recommendation.

Enhancing intra-court communication and coordination. I remember very distinctly Judge Kirkendall, who was then a probate judge in Ann Arbor, Michigan, said — and probate judges, he handled guardianship cases. Most probate judges do but not all. He said, “I can be in probate court deciding whether to appoint son as guardian for mom, and I have no idea that down the hall in the criminal courtroom, son is being prosecuted for having abused, neglected or exploited mom.” And I am going to talk about why that's still a problem 17 years later.

We also recommended that the courts could provide leadership in the community about elder abuse. Much was being done and is still being done with domestic violence and with child abuse. We thought they could and should do the same thing with elder abuse. So that again gives you the context of what the problems are, what recommendations we suggested to help solve those problems, and those were the standards that we then used, as I said, to assess the five projects.

So let me tell you quickly about the five projects. One is an actual court. It's the Elder Protection Court in Alameda County, California, which is Oakland, right across from San Francisco. And it was started by a Judge Julie Conger, who was a criminal trial judge at the time, had been for a long time and had been handling their domestic violence protection order docket as part of her role. And at about the same time that this got started, California expanded its protection order law, so that it became easier for older people to get protection orders against their abusers. Sometimes protection order laws don't really include elder abuse situations very well. They may cover partner or spouse but not cover if it's your kid and your grandkid who's beating you. So California broadened its law, which meant the court was starting to see more of these cases.

So she, out of concern that they were seeing more of these cases and because of the problems that I talked about earlier, decided to work with the court to create a special docket for elder abuse cases. And the way this works is that on Friday mornings, the Elder Protection Court is held. Friday is normally not a trial day in Alameda County, and court starts later than usual, so that deals with the problem there that I talked about. Many fewer people, it's much less of a cattle call than typical court, and it's a much calmer, quieter, softer, gentler process. We sat there, and it was really very interesting how it worked and how respectful it was of older people in that they were a little slow.

The Prosecutor's Office in Alameda County is very, very strong on elder abuse — had a dedicated elder abuse unit before the court was started with several prosecutors — and, interestingly, the Public Defender's Office ended up playing a key role, which we did not expect to find in this situation, and I'll talk a little bit more about it later.

The Elder Justice Centers are both in Florida, and that's about their only similarity there is their name and that they're both in Florida. One is in Hillsborough County, which is Tampa, actually where I used to practice; the other is in Palm Beach County, West Palm Beach.

The Hillsborough County project wanted to become an elder abuse court, and the Florida Supreme Court said no when that idea was developed. And that was sort of early on in the development of specialty courts, and they just didn't want to do that. So, instead, the Elder Justice Center there became a resource center as well as provided victim advocacy services and now is doing much more on guardianship monitoring as well, and I'll talk a little more about findings after I give the description of all of them.

Palm Beach County sort of misled us about what they do, I think. It turns out that they are — they help criminal defendants, and they help them by actually — they help the court in recognizing whether older criminal defendants may have Alzheimer's or some other dementia or some other problem that really means that they are best suited to be dealt with outside of the criminal justice process.

They had told us that some of those criminal defendants were elder abuse victims who maybe were now shoplifting because they had been exploited and needed to steal, for example, in order to live. You know, I think in reality, it turned out that they weren't helping elder abuse victims very much, and I'll talk again more about why not, where they're going, maybe how they are hoping to change that in the future.

The Elder Protection Order Projects are more similar than the Elder Justice Centers are to each other. One is in Jefferson County, Kentucky, which is Louisville. The other's in Kings County, New York, which is Brooklyn. Interestingly, they both started at about the same time. Neither one of them knew about each other until we found out and started — about them and started our project.

What they do is help homebound older people who need a protection order apply for and obtain their protection order from the court without going to court. So they do it telephonically, and both of them have a process whereby law enforcement and a service provider — it might be Adult Protective Services or somebody else — go out to the person's house and do the paperwork and then hook up with the court by telephone and the judge hears the application, the petition for the protection order, makes a decision whether to grant it or not, and then if it is granted, the service providers and law enforcement help serve the defendant, the respondent, the person who now needs to stay away from the older person, and then helps protect them in that way.

OK. Let me give you a sense of findings. I'm going to, for the most part, glom all of them together in this part, and then I'll go a little more specific about each of them and focus on how they relate to prosecution.

So what we sort of need to do here, though, is take out the West Palm, the Palm Beach Elder Justice Center, out of the picture because, as I said, it's really not helping victims very much. OK?

But, for the most part, the other four projects did help enhance access to justice for elder abuse victims. The victims received emotional support. They received help in getting to court. They received accompaniment in court. They received referrals to other services as needed. They received, often, protection from law enforcement. They helped them get accommodations in court. So, if it was necessary to have an interpreter or to try and schedule the hearing at a certain time because of a medication schedule or something, they helped in doing that. I told you they helped them get to court by arranging transportation, sometimes driving them themselves, I think, even though they probably shouldn't be doing that.

In general, the four projects felt that more elder abuse cases were heard as a result of the project. Certainly, with the Protection Order Projects, those cases would never have gone to court in the first place because the victims simply could not get to court to obtain the paperwork to do the protection order and then to present their case to the judge. In the other cases in the Elder Protection Court, it's just an environment that's more conducive to older people getting to court, to feeling comfortable being there, and to the prosecution and the public defenders being involved with these cases. Everybody felt, even if more cases weren't coming to their specific project, that cases were heard more quickly, more efficiently. They were expedited on the calendar and just handled much more effectively as a result of the project.

They also felt that, a sort of ripple effect — and there were many ripple effects of the projects — that the judges and not just the judge who might be handling the specific cases but the other judges in the courthouse, too, were made more knowledgeable about and more sensitive to elder abuse as a result of the project being there. They felt that service providers learned more about elder abuse and about the court and about the court's role, and because of these projects, that politicians were made more sensitive; the media was made more sensitive as a result, too.

All of the projects helped link older victims to other services in the community, which was very important, as I talked about before, and, again, enhanced public and professional awareness, far beyond the immediate players in the court projects and initiatives but beyond that as well.

So let me focus a little bit — how am I on time? — on prosecution a little more closely. The Elder Protection Court, as I said, in general, enhanced knowledge and sensitivity. Everybody felt — and again, it was the Prosecutor's Office, it was the Public Defender's Office, it was the investigators who worked with the Prosecutor's Office and others — that having that sort of central focus for elder abuse in the court really enhanced everybody's gain. It made them understand each other's roles better. It made them understand the approach and had a consistent approach because they were dealing with one judge rather than with multiple judges, and the judges had — even the prosecution and the public defender both had some concerns about the judge and about being before one judge.

And interestingly, Judge Conger had formerly been a public defender. So the Prosecutor's Office was a little worried that maybe she would be too lenient on abusers, and the Public Defender's Office was a little concerned that maybe, again, just having one judge and having — you know, the Prosecutor's Office is usually always stronger. It's better funded than the Public Defender's Office. So they had that concern as well, but I think they all felt fairly comfortable with it.

They all, by working together so closely, consistently and often, developed trust in each other. They realized that they all had a shared goal of pursuing justice, and that was really important because it enabled everybody, as they put it, to sort of look outside the box and trying to come up with remedies that best helped the older person, not just the system.

The environment was conducive to elder abuse prosecution there. As I told you, the Prosecutor's Office had a long standing, multi-person unit on elder abuse prosecution.

The Public Defender's Office role was critical because they had to basically consolidate — Alameda is a big county with multiple courthouses — they had to consolidate all the elder abuse cases into the main Prosecutor's Office in Oakland, which basically put all the workload on one person, who was already overextended, and so, if the Public Defender's Office had not been willing to play, this whole system never would have worked. The court would never have been able to take off, which was quite interesting. We did not expect that finding.

In terms of the Elder Justice Center in Hillsborough County, where it relates to prosecution is by helping to prevent guardianship abuse. Their main focus now is on guardianship monitoring. That has come about due to budget cuts and because they think that that is what will make the program indispensable to the court and will keep it from being destroyed as a result of the current fiscal situation. So, by doing that monitoring, they are preventing abuse and they are detecting abuse that's going on. Interestingly, law enforcement was not really involved in that project, and we did not interview anybody in law enforcement or the Prosecutor's Office there, but there's the tangential key from that project.

I told you about the Elder Justice Center in Palm Beach, which is really much more focused on diverting older criminal defendants with dementia or other problems out of the justice system. So they're not helping victims directly, but maybe because they're doing that, they're making it easier for victims to report, to go to law enforcement. Back to what I said earlier about you don't want your abuser to go to jail, you want your abuser to get the treatment that he or she may need, that helps there. And the prosecutor felt more comfortable about these cases and the outcome of these cases because he knew that the Elder Justice Center folks would do some follow-up and some monitoring, and so they felt like this was the right system.

The Elder Protection Projects, of course, helped prevent further crimes by the abuser in this case, and because the violations of the protection orders are crimes, there may be more prosecutions of those cases as a result. And it also helps to develop evidence that can be used by the prosecutor in these cases.

Intra-court coordination, I mentioned was still a problem, 17 years after Judge Kirkendall in Ann Arbor mentioned it. I had sort of hoped that with the advent of computers that these things would be less of a problem, but, apparently, they're not. It still is a problem. The courts still aren't communicating with each other.

Now, a lot of judges will say, “Well, that's because we're not supposed to know what happens in other cases. We can't consider that in making our decisions,” and that's valid to some extent, but I think to some extent, it may also be an excuse. Judges were telling us that unified courts do help with that problem, but just having a court-focused initiative or having computers isn't helping with that problem.

Providing leadership in the community is still an issue. In Alameda County, Judge Conger started, and the judge who has replaced her now that she has retired, was continuing the Elder Access Committee, which the court sponsored quarterly, held at the court, brought everybody together to come to talk with each other, to share, to talk about issues, problems with the court, as well as problems systemically in the community related to elder abuse.

I think we still see judges very reluctant to take a leadership role on these issues. Some of that is for ethical reasons. Judges, of course, have to be careful about not taking sides, but I think also there, too, that can often be an excuse, that they just don't know about this issue still, they don't care about this issue still, and aren't willing to forge ahead in a leadership role, as has been done with domestic violence and child abuse. So those are things that hopefully will change.

In terms of the court-filed data, I will just say that we found very little. What was in the court files was about as basic as it gets in terms of demographic information about the victim, maybe about the perpetrator. Often information about the perpetrator was in a probation record or in a sealed court file, a health or mental health file that the judges gave us authority to look at, but, of course, what that means is that it's very difficult to do research and evaluation on these issues and that has policy and funding implications, of course.

I'll wrap up just telling you we are in the process of wrapping up and writing our report. We'll do some articles as well. The project ends on December 31, and we have — information will be on our website once we can put stuff up on this project, and there's lots of other elder abuse information up on our Web page, too.

Thank you.

Page Ulrey: Good morning. I'm Page Ulrey from the King County Prosecutor's Office, and I'm going to just talk a little bit about how these studies relate to my experience as an elder abuse prosecutor.

I work for a prosecuting unit that is now comprised of two people and a half time paralegal. We prosecute cases of adult neglect, sexual assault, financial exploitation and homicide. We also are mandated by our elected to do trainings of first responders, the theory being that if we don't train people about how to respond to these cases, they're not going to come into our office.

And we also work on the coordinating community response to elder abuse, that theory being that if we don't work on working with APS and working with geriatricians and others in the field who are dealing directly with elders, we're not going to be handling these cases properly.

So that's just a little bit of background, and I want to spend a few minutes taking you inside the Prosecutor's Office, because that will give some context to some of the things that Shelly was told by the prosecutors she interviewed. And I think before I do that, it's important to remember that very few of the people she talked to were specialized elder abuse prosecutors, and even of the ones that were, I can bet you that they had very little training on elder abuse prosecution since there hardly is any.

So, usually, in most prosecutors' offices, there are no specialized elder abuse prosecutors, and a prosecutor who's handling one or two elder abuse cases on top of their other 98 cases is not going to be having an easy time of it. They're not likely to even know what a multidisciplinary team is. They're not likely to have ever heard of Adult Protective Services. They're not likely to have connections with the elder abuse detectives in their jurisdictions, if there are any.

And other cases that are murder cases or bank robberies or kidnappings that are kind of higher visibility in the office are inevitably going to take precedence, and they're also not going to have the knowledge to handle those cases effectively.

Elder abuse is not sexy in the prosecutor's world. The cases are considered to be onerous. The victims, as Shelly articulated, are considered to be difficult and high maintenance, and the cases do not have cachet in a typical prosecutor's office, and that affects how they get handled.

And it's true that they're difficult. These are big cases. The trials take longer. They're more complicated. They involve issues like capacity and dementia and powers of attorney and guardianships and things that, as Lori said, none of us get taught in law school.

And, also, elder abuse prosecution is more expensive. In almost every case I've tried, we've needed an expert witness, and that can be thousands and thousands of dollars, which is tough on a budget that is limited.

Also, a lot of prosecutors' offices really emphasize convictions over justice, and convictions aren't always the best thing for our victims. So, if we handle a case and it turns out that if we dismiss the case and arrange for different care for our victim, and treatment and offenders in treatment, that could actually be a better outcome for our victim than sending the defendant off to prison for the rest of his life.

But the way we tend to operate as prosecutors is going to trial is valued, getting a conviction is valued, and the longer the prison term, the better, with very little regard for what's best for our victims. So that is also a thing that I think complicates how we're handling these cases, especially when we're not specialized.

We also are not really trained to be empathetic with elders and elder victims in particular. A lot of prosecutors will insist on their coming in to testify, even if it means damaging their relationship with the offender who may be the last person they have left in their lives.

Again, failing to consider the needs of the victim in negotiating a case, so as Lori was talking about, what the victim wants more than anything is for her son, the abuser, to get alcohol treatment. That is not consistent typically with how a prosecutor is going to handle a case. That's not going to trump the esteem they get from their colleagues for sending that defendant off to prison.

We also just automatically request no-contact orders in our cases. There's no services or resources for supervised visitation, so she can see her son. There's no thought, even, that maybe a blanket no-contact order is actually going to do more harm to her than good. And, again — and I think this is also consistent with what people told Shelly — there is a perception of elder abuse as a family matter, as not being criminal, the same way we used to think of domestic violence decades ago.

We have little or no training on abuse of power of attorney cases. We don't know what undue influence is. We have no idea how to handle an adult neglect case. When we get one of those cases, we get a stack of medical records and maybe a description of a crime scene, and for most prosecutors handling that, they have absolutely no idea how to proceed and they assume they can't. So the statute's too narrow or they don't have enough evidence or there's some other explanation that they come up with, but it may actually be a lack of training.

We aren't taught about competency and capacity, especially with regard to elders. We don't know how to present massive bank records, which we have to do in almost every financial exploitation case we handle. We don't know how to present medical records to a jury. What do you do with that stack of records when you're trying to convey the symptoms and signs of neglect someone had, how do you present that evidence, it's just not something any of us are taught in law school or in any subsequent training that we get. We're not taught about the need to make accommodations for victims with physical disabilities or victims with dementia.

And Crawford, which also came up in Shelly's talk, is a case that basically says that elder hearsay, in other words statements that elders make to law enforcement in an interview context, are not admissible at trial unless that elder is available to testify at trial. This is a case that came out of my lovely state, and that pretty much eradicated all of the state's elder hearsay statutes that existed. So where beforehand, officers could interview victims and do videotapes and those videotapes could be offered against the defendant at trial, even if the victim had died or was no longer able to remember what had happened, after Crawford v. Washington, all of those hearsay statutes became unconstitutional. So those videotapes no longer are admissible, but there are ways around that. There are other hearsay exceptions that many victim statements still apply to, but a lot of prosecutors think about Crawford and they say, “Oh, we can't get in any victim statements. We can't even try if we don't have a victim. No victim, no case,” and that really is, again, a training issue.

We're also used to working in a silo, we as non-elder abuse prosecutors. Again, I'm familiar with APS. We're not used to staffing cases with a multidisciplinary team, if we even know what that is. We're not used to working on the coordinated community response to a problem. All of those things are foreign to how we're raised in a prosecutor's office.

So these are the different explanations that Shelly was given about why elder abuse is harder to prosecute, and I just want to break down each one of those and talk about it briefly.

Elders don't make good witnesses. Prosecutors, like other people, often assume that if you're older, you lack credibility; that if you're older or you suffer from dementia and that even if you have dementia, that means automatically that you can't testify at trial.

We typically lack training as to what dementia is, as to the fact that a victim actually, even with dementia, may still be able to testify, depending on what time of day it is, what kind of medications they're on, how their other underlying health conditions are doing.

They are unfamiliar with the UCI study that came out recently — and Aileen Wiglesworth is here with us, who worked on that study — regarding the impact of dementia on the ability to remember traumatic events, and Aileen's study actually says that even with dementia, there is evidence that you have a better recall of traumatic events than non-traumatic events. So, with studies like that, we may actually be able to put on testimony of a victim who has dementia, even if they're unable to recall other parts of their history or their lives.

We also lack training and knowledge of the fact that if consent is the defense and there's a dementia issue, we need to get a psychological or psychiatric evaluation of the victim. We don't just write off the case.

The statement that the prosecutors made to Shelly that victims are unavailable, therefore elder abuse is harder, and certainly that's true, but I also want to give some background as to why that's true. Elder abuse, as you all probably know well, is lethal to many of our victims. Mark Lachs found that elders are 300 percent more likely to die a premature death, no matter what kind of abuse they've suffered.

Still, we can prosecute cases without victims. In most of the trials that I have, we don't have a victim. The victim has either died or has lost their memory of what happened, but you have medical records and you have financial records. We have evaluations that should be conducted immediately in an investigation by a geriatric psychologist or psychiatrist where dementia is an issue with your victim.

We have hearsay statements that the victim made to other people. If a victim makes any statements to medical personnel about what happened to them, that's admissible in court. If the victim made excited statements to law enforcement or to a 911 operator, that's still admissible in court, even with Crawford. So a lot of the way we look at cases now is we go through all the different victim statements and we say which ones of these still fall within hearsay exceptions and can be admitted, despite the fact that Crawfordexists.

And on the financial records point, I think people also told Shelly that financial cases are very difficult to prosecute, and I actually think they're the easiest type of elder abuse to prosecute because we have bank records, and the bank records tell a beautiful story of what happened to that victim's assets before and after the perpetrator got into their life. They also show what happened to the perpetrator's assets. So, typically, we will put on evidence of the perpetrator having nothing and then moving into the victim's life and suddenly buy new cars and new houses and spending money like crazy. Meanwhile, at the same time, the victim, who had a lot of money, their assets very quickly go down to nothing, and at the point when they hit nothing, the perpetrator leaves their life, typically. So that kind of evidence, even without a victim, can be very compelling for a jury.

Obviously, you have issues if the victim consented to that transaction, but if you have evidence — or to those transactions, but if you have evidence from family members saying that the victim isolated them from — or the perpetrator isolated them from the victim, that the perpetrator was emotionally abusive to the victim, that the victim never spent their money the way they're spending the money once the perpetrator is in their life, all of those things can come in as evidence in trial and can be used successfully, but, again, it's a training issue.

The next statement, weak or lack of evidence, this is purely subjective. It's claimed. Sometimes it's true, but it's also claimed when a case is difficult, particularly when you have a caseload where you have one or two elder abuse cases and a bunch of other, much easier, much more compelling cases.

It's also claimed when you don't have the training to really understand how to prosecute a case, like the one on your desk, and it's also claimed when you don't have the resources to properly try a case, when you don't have funds for expert witnesses to help prove your case, when you don't have funds for an expert to help you look at your medical evidence or your financial evidence and explain how a case like that can be proved.

The statement by the prosecutors that the perpetrator acted within their rights, that scares me. I think it rings of, well, abuse, in some way, frankly. Consent is the most common defense that we see in elder abuse cases. We see it in sexual assault cases and neglect and financial exploitation cases, and, typically, our perpetrators claim that what they did was within their right, that the victim consented, that this was what they were entitled to do.

But we have to look beyond that simple consent that's alleged. We have to look at whether or not a new influence was used to obtain that consent; in other words, whether the perpetrator took over the victim's free will and forced that consent. We have to look at whether the victim had capacity to consent, was their dementia so severe that they really couldn't adequately know what it was they were consenting to and give permission to it.

Abuse of power of attorney. Again, perpetrators who steal money under a power of attorney document typically claim it was within their right, but the reality is that a power of attorney creates a fiduciary duty to the elder. When you have a power of attorney, you are not allowed under the law of — I'm guessing all states, Lori. Is that true? — to spend that money for your own benefit. It must be spent for the benefit of the elder.

There usually is some kind of gifting provision in the power of attorney document, but it typically creates a very clear limitation on what you can give to yourself. So we can prosecute these cases. We prosecute them as thefts, theft by embezzlement, the same way we prosecute accounting abuse cases or bookkeeper financial abuse cases. We don't need a special power of attorney statute, even though they're wonderful. So this is, again, a common misconception amongst law enforcement and amongst prosecutors and one that has explained tremendously why we aren't handling these power of attorney abuse cases properly. Again, it's a training issue.

“He said/she said,” that was, I think, the last explanation that they gave Shelly about why these cases are so hard. Inherent in most elder abuse cases is a lack of witnesses. These are almost always “he said/she said,” if the “she” is still alive. But the reality is that a key indicator of elder abuse is the loneliness or isolation of the victim. So, almost always, we only have one witness to our crimes, and that is the victim, again, if she is still alive. So these are always “he said/she said” cases. The way we have to prove these cases is circumstantially. We need to look at the records that we have. Like I said before, we need to look at what the family members say, the friends who had a relationship with the victim before the incident occurred; the medical records, the geriatric psychiatrist or psychological evaluation of the victim. All of those things are how we build our cases, even if we don't have any witnesses to the crime.

We don't look at child abuse and write it off saying it's a “he said/she said” case and we can't prosecute. We don't look at domestic violence anymore and say that.

So the question for us is not whether there are witnesses, but is there sufficient corroborating evidence to prove the case beyond a reasonable doubt, and if there isn't, we should be able to articulate why, what evidence on what element is not sufficient, and why is it we can't prove that evidence through the surrounding circumstances and the corroboration that we have.

I'm not saying these aren't hard cases and we don't decline a lot of these cases. We do, but they're not impossible simply because we don't have any witnesses.

I want to move a little bit more to Lori's topic about the specialized courts, and I think it just ties in beautifully to the need for specialized prosecutors. What a typical elder abuse victim has to go through if their case is ever prosecuted is, first, they have to give a statement to law enforcement about whatever horrible thing happened to them.

If it's a sexual assault case, they have to undergo a rape exam. Then they usually have to meet with a prosecutor and give a statement. Then they have to submit to a typically ugly interview with the defense attorney. Then they get to wait for months or years for their case to go to trial, if it doesn't plead guilty, and then at trial, they get to tell their story of having been exploited by the person they love to 12 plus strangers. Then they get to be cross-examined again by the defense attorney. Then they get to wait for sentencing, which usually takes weeks or months after the trial if there's a conviction. Then they get to wait for the appeal, which usually takes another several years before it's done, and if that is successful for the defendant, they could have to go through a retrial, all of this when they're probably in their 70s, 80s, 90s, and are having to deal with having been abused by someone they loved.

The non-specialized courts that are typical in our jurisdictions, as with non-specialized prosecutors, end up losing the value of these elder abuse cases in the crush of the rest of the calendar. We end up being frustrated by the delays that are caused by the special needs of elder victims. We don't have understanding of dementia and how to accommodate victims with dementia. We typically don't have victim advocates who have specialized knowledge about how to handle disabilities and dementia and what services are available to elder victims.

The prosecutors that Shelly talked to had really great things to say about what needs to happen to reform courts, and I just wanted to put them up here again because I think they fit in beautifully with what Lori talked about as far as what the courts around the country are beginning to do.

Expedited trials, enhanced penalties, priority on dockets and courtroom accommodations for elders.

Karen J. Bachar: Today's presentation is on “Sex Offenders in the Community: Post-Release, Registration, Notification and Residency Restrictions.” The management of sex offenders in the community post-release is an issue of increasing concern to law enforcement, policymakers and the public.

In recent years, there've been many efforts made to strengthen registration and notification. At the same time, we haven't paid a lot of attention to related matters, such as how residency restrictions may impact offenders' efforts to find work and stability, how their living arrangements — what happens when they get released from prison, whether rates of recidivism have changed according to these policies and whether these policies have succeeded in increasing public safety. These are some issues that a lot of people ask.

And to talk about these and related issues to sex offenders, I am happy to have a panel of experts to share their information.

First up will be Dr. Elizabeth Letourneau, who is an associate professor in the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina.

She's worked on Family Services Research Center since 2000 and studied various aspects of sex offending and sexual victimization for more than 20 years. Her research examines interventions for youth who engage in risky behaviors, including juveniles who have sex offended, youth with HIV who engage in unprotected sex and delinquent youths who engage in risky sexual behaviors.

Next, Dr. Kristen Zgoba is the supervisor of Research and Evaluation at the Office of Policy and Planning for the New Jersey Department of Corrections. Her research involves studies of homicide offenders, sex offenders and geographic analysis. She serves on the board of directors at the American Correctional Association and is on the editorial board for Victims and Offenders,Journal of Research in Crime and Delinquency and Criminal Justice Abstracts.

Last but not least, we have Alisa Klein, who is a public policy consultant to the Association of Treatment for Sex Abusers, an international, multidisciplinary organization dedicated to preventing the sexual abuse through assessment, treatment and management of individuals who have sexually abused or at risk to abuse.

Without further ado, I will bring you Dr. Elizabeth Letourneau.

Elizabeth J. Letourneau: Several years ago, I received funding from the NIJ to look at the effects of South Carolina's sex offender registration and identification policy on several outcomes. Those outcomes include primary prevention or general deterrence, recidivism, judicial decision making, and then we've also looked at failure to register and recidivism, whether failure to register is associated with sexual or nonsexual recidivism.

I don't have enough time to talk about that last study, but all of these studies have been published, and I give you a partial citation there. I'm happy to send the publications to anyone who cares to e-mail me.

I'm going to be talking about the first three of those four topics, and 20 minutes is not a lot of time to talk about three studies then. So I'm going to cut to the chase on these and not give you a lot of detail. Again, these are all published. The full citations will be listed, and I can send you the articles if you e-mail me or they're pretty easy to find online.

And I think we're saving questions until the very end. So we have 30 full minutes for questions. So you will have time to ask your questions, we'll have time to answer them, but if you could save them to the last speaker, that would be great.

South Carolina's SORN policy is very similar to the Sex Offender Registration Notification Act, the part of the Adam Walsh Act that legislates SORN policies nationwide. So, in South Carolina, our policy is based solely on conviction offense. There's no risk assessment, which is similar to the Adam Walsh Act, and includes a very wide range of offenses. There are almost no sex offenses in South Carolina that are not registry-eligible crimes.

We require lifetime registration, which is misspelled. That's the only place where we actually are a little more severe than what is required by the Adam Walsh Act, and then we require online registration for all registrants over the age of 16 and several who are under that age as well.

Given these similarities, it is my belief that the findings that we get from our research might forecast the effects of nationwide implementation of the Adam Walsh Act.

The first study that I'm going to talk about has to do with the effects of South Carolina's SORN policy on general deterrence or primary prevention of sex crimes. So the question we asked here and tried to answer is did first-time sex crime arrests decline after SORN was implemented, and, again, there's the citation for those of you that want to read the article.

Using adult arrest data across a 15- … 16-year period of time, we modeled the effects of two intervention years, 1995, which is when South Carolina initially enacted SORN, and 1999, which is when online registration was enacted in our state.

We looked at the rates of first-time sex crimes using ARIMA analyses, and then for comparison, first-time assault and robbery crimes because, if we saw a decline in sex crimes, but the decline was the same or occurred at roughly the same time as decline in other violent crimes, then that would not be attributable to SORN, but if we see a decline in sex crimes that corresponds with 1995 and/or 1999 and we don't see that for other violent sex crimes, that supports a SORN-related hypothesis.

We had quite a few arrestees, nearly 20,000 sex crimes, over 173,000 assault crimes and 13,000 robbery crime arrests from these data, so these are population analyses for this data, South Carolina, and not samples.

What we found, which frankly was surprising to me, is that there were declines in first-time sex crime arrest rates following 1995 for sex crimes but not for the other two types of crimes. This translated to about a 10-to-11-percent decline in first-time sex crime rates or about three sex crimes averted per month following the initiation of SORN in South Carolina. We didn't see similar effects for assault and robbery, and we concluded that this supported a general deterrent effect or primary prevention effect for South Carolina's initial SORN policy. There was no similar effect for online registration, just for the original registration policy.

These results replicate those of Prescott and Rockoff 2008, an unpublished but widely circulated study on multiple states' worth of data. They also found a deterrent effect.

Sandler and Freeman, in New York, found no evidence of deterrence, and so our results are markedly different from theirs, and they used the exact same methodology, ARIMA analyses across a 20-year period of time.

We think that our differences are due to variation in state SORN policies. For example, South Carolina registers twice as many citizens as New York does. New York has a much more — has a risk-based SORN policy, and consequently, they register fewer people.

My working hypothesis right now is that when you register a lot of people for a wide variety of crimes, the message might actually get out to the general public, and I don't know if the message is “hey, this is a sex crime, you may not have known that, but now you do,” or if the message is simply “don't do this because your face is going to — you're going to be on a registry at some point.”

What we need to do, however, is compare some state policies in the same study to find out if it's really policy variation that's driving the differences in the outcomes between our studies and, for example, those of the New York folks.

Moving on to our second study, here, we looked at the relationship between South Carolina's SORN policy and recidivism, and we asked the question did SORN reduce sexual recidivism, which is its main function. It's to reduce recidivism, right? And we also looked at other forms of recidivism, and, again, there's the full reference. It's still in press, and I keep checking, and it's not out yet, but it should be soon, I'm sure.

Again, we did population analyses. We took all men convicted of one or more sex crimes between a 15-year period of time, and at some point a little over half are registered during follow-up. The mean follow-up time frame was 8.4 years with an average standard deviation of about four years. So, basically, anywhere from four to 12 years, we were following recidivism.

We looked at new sex offense charges and then separately we looked at new sex offense convictions, and we also looked at other violent offenses, any kind of person-related crimes, and nonviolent offenses.

Regression analyses. We used regular standard Cox regression analyses, and we also used some comparative regression analyses where you can include all types of outcomes, but the results did not vary. In the models, we examined several covariates, including whether the offense was a registry-eligible offense, and then some demographic characteristics of offenders that we know influence recidivism: age at start of follow-up, offender race, number of prior convictions; and we looked at whether the victim of the index or the first sex crime was a minor or not.

There were a few new sexual charges across this average 8.4-year follow-up, only 8 percent. Registration status did not significantly predict sexual charges. Several other variables did, as predicted.

There were even fewer new convictions as we would expect, only 5 percent, and if that looks low to you, that number actually corresponds very closely with other research that has been done in South Carolina that was funded by the Bureau of Justice in a follow-up study to the three-year recidivism follow-up rate of all rapists and all child molesters. They found similarly low recidivism rates, as have recent reviews of national data.

So, when you're looking at people, not people who are referred for treatment but if you are just looking at folks who have been arrested and convicted of sex crimes, their recidivism rates are low, and so that's actually not surprising. In any event, registration status was not a significant predictor of new sex crime convictions.

All of the predictors in our model predicted violent recidivism, except registration status and the same with nonviolent offense charges, and so we concluded a couple of things. Sexual recidivism was a rare event, and SORN did not influence it, and SORN did not influence any other type of recidivism either.

The folks in New York, Freeman and Sandler, Naomi Freeman and Jeffrey Sandler, also did not find that SORN influenced recidivism, they ran very similar analyses to ours.

Other researchers have found conflicting results. Duwe and Donnay, who are in Minnesota, found that the Minnesota notification process actually reduced recidivism. That process is a risk-based process that targets very high-risk offenders with the highest level of notification. They published a study in 2008, I think it was, where they found significant reductions in recidivism in relation to a comparison group of offenders who weren't subjected to notification. On the other hand, Prescott and Rockoff, who I just cited a moment ago, found increased recidivism rates for men who were subjected to notification, and so the results really vary widely, and, again, I suspect strongly that that is due to differences in state policies. But, again, there's been no research that has specifically compared different state policy characteristics to see if some characteristics are actually associated with increased recidivism, a criminogenic effect; whereas, others might be associated with decreased recidivism and others, like South Carolina's, are just plain ineffective at changing recidivism rates.

Our third study looked at the effects of SORN on judicial decision making, and, specifically, we looked at whether the likelihood of pleading from a sex crime to a nonsex crime changed after SORN was implemented and whether the likelihood of a final guilty determination changed after SORN was implemented. And, again, we looked at two different time periods, 1995 time period, 1995 to '98, which is when SORN was implemented, and 1999 to 2004 when online SORN was implemented. Again, these are population analyses with a very large number of defendants who have been charged with at least one sex crime in a 15-year period of time.

And we included other covariates in the models, including whether the arrest was for a registry-eligible offense, whether the victim was a minor, offender age, race, number of priors and whether the arrest was a no-parole offense, and that's a truth-in-sentencing designation, so if this was an offense that would get you some extra time per truth-in-sentencing laws, which were passed at almost the same time as registration laws were passed in South Carolina.

What we found is that the rate of pleading from a sex to a nonsex crime doubled over time, and so we went from about 10 percent of defendants pleading from a sex to a nonsex crime pre-SORN, so 1990 to 1994, before we had any SORN policy, to 20 percent after online registration was implemented, and those changes were all statistically significant.

Variables that increased the likelihood of pleading included registry-eligible charge and having minority race, and then if you had a minor victim or you were older at the time of your charge, you were less likely to be permitted to plead to a nonsex offense. But so here we see that SORN has actually doubled, responsible, I think, for doubling the rate of pleading. We did not see similar increases in pleading for other crime types.

There are approximately 1,100 sex crime charges against adults per year in South Carolina, and that means we went from allowing 110 of those to plead to allowing 220 of those to plead. That's a lot of people who are being permitted to plead to a nonsex crime, and when they plead, pleas are almost universally associated with guilty determinations, of course, so you're being found guilty of aggravated assault and battery. Almost all the offenses are pled to that particular crime, which means you will not get sex offender treatment, and you will avoid registration notification, which is the whole point of pleading in the first place or it's a big part of it. So these folks are effectively opting out of any kind of treatment that might have been offered to them.

Results for guilty dispositions were also interesting. Sixty percent of all sex charge cases resulted in guilty dispositions, and the likelihood of getting a guilty finding increased after SORN was initially implemented and then declined after online notification was implemented, and when we removed the pleaded cases, which you will remember increased over time and they're almost all associated with guilty determinations, when you take those out of the equation and you just look at people who were charged with a sex crime and adjudicated for a sex crime, the likelihood of them getting a guilty determination declined after online registration went into effect to below pre-SORN levels.

So we started out at about 48 percent of these individuals being found guilty for a sex crime that increased for a brief period of time after SORN was initially implemented, and then it declined below the pre-SORN levels to 45 percent. And although that doesn't seem like a big decline, 48 percent versus 45, it is statistically significant, and it indicates that after online notification, we actually had more people being acquitted, so we have more people pleading, a significant increase in pleading to nonsex offenses. If you don't plead, you're actually now much more likely to simply be acquitted outright.

In combination, the results suggest that South Carolina's policy did achieve some modest effects in deterring new sex crimes, as I mentioned earlier, about three per month, but you have to look at that positive effect in light of the entire effect of this policy, I think. There's no effect on recidivism, which is what it was designed to reduce in the first place, and there are real significant changes in how these sex crime cases are handled. Many more are allowed to plead to nonsex crimes, and then significantly more now are simply not found guilty at all.

We did not find similar changes, by the way, for other types of violent crimes, and so we did do our comparison analyses.

As I mentioned, sex offenders convicted of nonsex crimes are going to not receive specialized treatment. They avoid registration and the notification altogether. Exonerated sex offenders are going to avoid any kind of judicial consequences, and, potentially, the effects of that are that they may not view their actions as having been particularly detrimental. We also know that victims are hurt when offenders are not held accountable. There's a long history of research in that area.

South Carolina's public registration policy relies entirely on the conviction offense. There's no risk assessment. It targets a very broad category of offenders. There are people who are on our lifetime online registry for voyeurism and for indecent exposure, as well as for much more serious sex crimes, but because our policy is so broad, it overwhelmingly targets low-risk offenders. But I think that the results from our research suggest two policy modifications.

I think there's a strong argument to be made for reserving registration and particularly for reserving notification for high-risk offenders. These are costly interventions. We're starting to look into the costs. My colleagues, actually all the colleagues here, Kristen and Alisa and some others are starting to look into the costs of registration and notification, and it's really quite astronomical, not to mention when you have so many offenders on the registry, it, I think, does the community a disservice.

I'm not sure what you would do to protect yourself from someone who is an indecent exposure versus someone who is a child molester with repeated victims. When you treat those two people the same, I think it makes it difficult for the community to use these tools in any meaningful way.

I think online notification, in particular when there is no discretion, there's no judicial discretion, there's no risk assessment, we see some very significant changes in case processing, and these changes were completely unanticipated. Nobody expected more sex offenders to be let go, and nobody expected more sex offenders to be permitted to plead to nonsex offense crimes.

Those are some effects of South Carolina's policy, and I suspect those will be the effects of the Adam Walsh Act when it's implemented nationwide because the two policies share so many characteristics, and so I think the second policy recommendation is that online notification should be curtailed significantly, if not eliminated, but certainly curtailed.

In several cases, our results conflicted with other researchers, and as I've said, I think that policy characteristics probably account for those changes.

New York registers relatively few offenders compared to South Carolina. That might account for their differences in general deterrence. They found no effect; we did find a general deterrent effect, but both states found no evidence of reductions of recidivism.

On the other hand, Minnesota, which has a different tiered and risk-based policy, did find reductions in recidivism. Prescott and Rockoff, using national data, found increases in recidivism.

We really have to move beyond single-state studies, and this is a note that I have been sounding for the last couple of years. We have got to have some comparison studies that take data from several states, not just aggregate data. You really need individual-level data, so you can identify offender characteristics and specific offender recidivism and see how those are influenced by policy characteristics, such as whether registration is conviction-based or risk-based, whether duration is 10 years or life, whether notification involves online notification or some much more targeted notification or no notification. I think those are the three main areas of variation across state policies that probably are having influences on these outcomes, in particular the outcomes in judicial decision making.

I believe that when judicial actors perceive that they have judicial decision, that they have some control over what happens, that you wouldn't see the increases in plea bargains or the reductions in guilty determinations that you see in our state when judicial actors have zero control over the process.

And that's the end of my talk. Thank you very much for your time.

[Applause.]

Kristen M. Zgoba: Good afternoon, everyone. I'm here to talk to you today a little bit about NIJ's funding of a study that came out of New Jersey. As I'm sure you're all familiar with, the birthplace of Megan's Law was in New Jersey, and we thought given that fact, that coincided with the 10-year mark of the implementation of Megan's Law, that it had been a good time to really apply for some funding that would track some long-term outcome of what we were seeing in that state. And when we started to look at the literature, we saw that presently all 50 states had some version of SORN, some version of Megan's Law, as well as the District of Columbia and many countries abroad.

So we started to ask ourselves, well, all of these states have these laws, what really is the effect, what's happening, what can we see as the likely outcome of what we've implemented. So we realized that despite this widespread support for these registration and notification laws, there was little evidence, if any, that supported any type of reduction in first-time offenses, which we saw through protective measures or general deterrence, or any literature on sexual re-offense reductions, which would be through protective measures and specific deterrence.

So, to provide you a little background of the study, the National Institute of Justice awarded myself, as well as a number of colleagues, this grant in 2006, and what we're looking to do within this grant that has since ended was to compare a potential pattern of sexual offending rate specific to New Jersey, so before and after the implementation of Megan's Law.

What I should also note here is that within the context and within the interest of time, I'm presenting to you two phases of this study. There are actually three phases to this NIJ study, the last phase being a cost-effectiveness analysis of Megan's Law specific to New Jersey, which, again, in the interest of time I'm leaving out, but, as Elizabeth has mentioned, Alisa, Elizabeth and I are working on an analysis of that.

Also, we've been able from the results of this study to parlay a number of different analyses specific to sex offender registration and notification, particularly whether or not sex offending characteristics and predictors of recidivism have changed over time. So we were able to have this 10-year time span of sex offending recidivism information, and what we were able to also do outside the scope of this grant was to analyze whether or not those risk predictors of recidivism changed from when we started to see Megan's Law implementation and risk assessment instruments being utilized to where we are now because, as we know, our risk assessments haven't changed all that much. OK.

We were happy to see that risk predictors of sexual recidivism remained stable over the 10-year time frame. So they haven't changed a whole heck of a lot from what we saw from our research.

So there are two different phases to this research, and I'm presenting you the methodology on both of them. The first was a simple pre- and post-research design that determined whether or not there were significant changes in the rates of offenses reported by law enforcement agencies prior to the implementation of Megan's Law and after the implementation.

We looked at rates for sexually based offenses, nonsexually based offenses and drug-based offenses from 1985 through 2005. We utilized data from all 21 counties in New Jersey as well as the aggregate form of New Jersey as a whole, utilizing, again, Uniform Crime Report data.

What we did was look at the prevalence rates for re-arrest, re-conviction and re-incarceration over the time frame, and we compared population estimates from the Department of Labor's Bureau of Labor Statistics. These population estimates from New Jersey were cross-referenced with the Sourcebook of Criminal Justice Statistics, and there was no significant difference between the population estimates between the sources. So we utilized UCR data for the data that was significant, obviously, for the study.

Again, as we all know, one of the limitations that I'll discuss in the last section are the limitations of utilizing official data and arrest report.

We also thought it was necessary to not only take sex offending data but also to look at nonsexual offending patterns over this 20-year time frame and also drug offense patterns. The reason that we chose drug offense patterns was because we've seen, specific to New Jersey, very similar legislative pathways. So we thought it would be interesting within these time frames if we could take all of this information and sort of fit it into the context.

Phase two of this grant had a very, very different methodology. We utilized a sample of sex offenders that were released from the New Jersey Department of Corrections, so all of the offenders in phase two of the study were convicted sexual offenders. They were released either from our adult diagnostic and treatment center or the general population.

In New Jersey, we are one of only two states in the country that have a prison facility specifically devoted for the treatment of sexual offenders. Those sex offenders are incarcerated just like they are in general population, with the exception that they receive treatment specific to sex offending. OK.

So we utilized 50 sex offenders per year, 25 from the ADTC and 25 from the general population. We randomly selected them for these 11 years, from 1990 through 2000. This yielded us a sample of 550 cases of sex offenders. Within these 550 cases, we collected quite an assortment of data on each individual offender, approximately 100 variables on each offender.

They ranged from historic information to demographic information, sentencing and re-offense patterns for each individual sex offender in the sample.

Phase two analyzed these pre- and post-group differences on three specific outcomes that we were interested in.

The first was the most obvious: the reduction of recidivism. We thought it would be in our best interest to utilize a sort of triangulated methodology here and look at re-arrest, re-conviction and re-incarceration.

We were also very interested in increased community tenure. What we meant by increased community tenure here was the number of days it took to the first arrest for general offending and the number of days it took to arrest for sexual offending.

The reason that's important is because whether or not you see a statistically significant reduction in recidivism is, of course, the hallmark of your outcome study, but if an offender is also staying in the community at a longer time span prior to recidivism, that, in some ways, is still a very significant outcome because we start to see cost benefits, a number of different benefits that can be gauged from that.

We also looked at reduced harm. Within the context of reduced harm, we were interested in whether or not the obvious happened. Are there fewer sex offenses occurring after the implementation of Megan's Law?

Within that, we were also interested whether or not offenders in general were less violent, OK, so whether or not this sample of sex offenders after the implementation of Megan's Law, whether or not they just happened to be less violent offenders and whether or not we saw offenders who had fewer child victims, because we know through the majority of research, Megan's Law is going to focus primarily on those individuals that have those child victims. So it was important for us to really gauge whether or not we were seeing a reduction there.

The first results you see here are for phase one, and the next few slides, I'll point out to you, were all for phase one. The rates varied here, so you'll see on the bottom portion, the X axis of your scale here starts you off at 1985 and then brings you up to 2005. So what you see here at 1994 is the point of implementation for Megan's Law. The rates varied from a high of 51 offenses in 1986 to a low of 29 offenses per 100,000 individuals in the population in 2005. In general, we saw a consistent downward turn of sexual offending rates over this 20-year pattern.

What you are looking at here is the rates before and after the implementation of Megan's Law. The upper line represents sex offenses through the years 1985 to 1994, and the lower line represents sex offenses for the year 1995 to 2005. Superimposed over these data points is a linear trend analysis that will ultimately provide us the information to see whether or not the slope has increased or decreased over time.

The first thing that should be noted from what you're looking at here is that beginning in 1995, which is your bottom line, the rate of sex offenses have never again approached the pre-1994 levels. The intercept and the average of these two lines are different.

And the second important thing to take home is that the slope is deeper in the post-Megan's Law period. This is particularly notable for us, for the facts that these are sex crimes, and we all know that sex crimes have a low base rate of offending, so one wouldn't necessarily expect to see a steeper dropoff of these rates.

Now, when we do the same with our nonsex offenses, just to sort of get it into context, we see that the average number of crime has been changed to per 1,000 population, and the average is 50 crimes per 1,000 individuals and the highest is 56 in 1989. We see here at 1994, again, is the point at which Megan's Law was enacted. The lowest rate we see here is in 2003 at 45 nonsex crimes per 1,000.

For the last five years of these data, we ultimately see that the crime rate has remained stable. There is a significant change point, however, if you look four years past the 1994 at 1998. For these data analyses, we utilize what's known as a Mann-Whitney U test, which rank-orders all of your data and is particularly useful for individuals when you don't know where your data points change. OK. So, within the nonsex offending rates, we saw a significant data change point at 1998.

These are what our statewide drug offenses looked like for the same time frame. Rates varied from a high of 89 in 1989 to a low of 52 in '85. Again, so we can see that in 1989, our drug rates spiked, there is no significant change point with our drug offense rates during that same time frame.

This moves us over to our recidivism information for phase two of the sex offending study. What this does is present pre and post contrasts that are controlled by time at risk. So these are year-by-year graphs that analyze our different data points for arrests, convictions and incarcerations for the 10-year time frame, so this is phase two.

OK. So, going from 1990 to 2000, five years prior to Megan's Law, five years post-Megan's Law, and, again, it represents the rate of sex offenders released during these time frames. Overall, 46 percent of offenders were re-arrested, 41 percent were convicted and 35 percent were re-incarcerated, and, again, this is hard to gauge simply from this, and you'll see this in the next table that I'm about to show you. This is for general recidivism by year, so this is not broken down for sexual or for drug offenses.

This is what became particularly important for us with our sex offending study, and this represents the outcomes pre- and post-Megan's Law. You'll see that at the top of the table, we have recidivism information. You see it broken down by pre and post total, utilizing either an ANOVA or a chi-square.

Of particular interest are the top three. This weighs general recidivism. So, within general recidivism, we took sexual recidivism out. OK. So this is just general types of recidivism here. We did see a significant pre/post effect on general recidivism after Megan's Law. So, on all three categories post-Megan's Law, we do see a significant reduction for general recidivism.

When we look, then, at community tenure, community tenure, as I explained to you, was days to arrest for any crime. So, for our general recidivism or days to arrest for our sex crimes, we see no significant difference within these two categories. So sex offenders are spending approximately 772 days in the community prior to Megan's Law before they commit any crime, and 726 days in the community prior to committing any offense after Megan's Law. OK. We see slightly higher time frames pre-Megan's Law for sex crimes, and then post, 765. This didn't achieve any sort of statistical significance.

When we look at harm, this is what, again, is the primary interest particularly for us because we know that our Megan's Law study is supposed to have an effect on sex crimes. So we show here the percent re-arrested for any type of sex crime. Prior to Megan's Law, 10 percent of the sample was re-arrested for any type of sex crime. After Megan's Law was implemented, 7.6 percent of the population had been arrested for any type of sex crime. Again, no statistical significance. When we looked at re-conviction and re-incarceration, we also did not see any difference.

Also, of importance was the type of sex crime. As I explained to you in the first few charts, we were interested in whether or not the type of offenses that sex offenders were committing actually changed over time, and, again, we didn't see any change with that. We didn't see that sex offenders were committing crimes against a smaller amount of children or larger amount of women, adult women, anything like that. The only place that we saw a reduction was in the percent of violent offenses. We saw that post-Megan's Law implementation, sex offenders were generally less violent offenders, OK, and that reached a statistically significant level.

Our survival functions, you'll see before you, considered are censor cases or time at risk here. Our offenders in our previous analyses were capped, so all offenders had the same amounts of time at risk, which ultimately became six and a half years, and you'll see from the graph that there's very little difference between the offenders pre- and post-Megan's Law implementation in terms of those staying within the community. This, of course, did not reach a statistically significant level either.

So the results tell us that New Jersey has experienced a downward trend in sexual offense rates with the change point at 1994, and this became a very important issue for us because, ultimately, what was happening was phase one of our study was indicating that sex crime rates were down, that they were down from the 20-year mark, and they were consistently going down, OK, which led many individuals in the community to surmise, “Megan's Law is having an effect,” because your sex crimes are down. OK.

We then, when we moved on to phase two, did not see that same result. When we took our aggregate data and sort of de-aggregated it, we no longer saw that effect over time. OK.

The majority of the counties, sex offense rates were higher prior to 1994 and were lower after 1995, which is ultimately when we know Megan's Law came into effect, but we couldn't in any way point to the fact that Megan's Law was having that effect.

While sex offenses have rebounded somewhat, they are far lower than they were in the '80s and early 1990s. In terms of sex offenses, the general decline is similar to that of nonsex crimes; however, the statewide change point for sex offenses occurred during the time frame that we would have expected it to, around 1994, while our nonsex crime rate changed in 1998.

The wide year-to-year fluctuations in drug crimes were, we assume, a reflection of our drug policies and our practice efforts, although those efforts have not been sustained over time, and in the case of sex offenses, we know the statewide change occurred when it was predicted to change, and we have seen that it's maintained that power, primarily the statistical power, over time.

Again, when we look at the pre- and post-Megan's Law analysis, though, we see that Megan's Law was not effective in increasing community tenure, so they're not spending longer amounts of time in the community. It has not reduced the number of sex crimes. It has not changed the type of sexual re-offense or first time sexual offense, and it has not reduced the actual number of victims involved with sexual offending.

Before I move on to the limitations very shortly, just to say again this is something that we struggled with in New Jersey and had to be very careful with how we worded it in our final report to the Department of Justice because we knew that this information could easily be misconstrued particularly within the media and the legislature saying that Megan's Law was, in fact, effective. And we knew primarily that was coming from individuals that really didn't have a strong concept of the statistical analyses when, in fact, this actually did happen, particularly with one of the state senators who drafted Megan's Law ultimately came out saying that, “Look, Megan's Law is effective, you know. Bottom line, are sex crime rates lower after Megan's Law was implemented, or were they higher?” you know, and your obvious answer is, “Well, they're lower,” and he said, “Well, you see, it's effective, then.” So, again, we had to be very, very particular in how we drafted these results.

The limitations for this study are those limitations that we would see in most research, including official reports, particularly that of utilizing UCR data. We know about the underreporting, and we know about the low base rate of reporting.

Particularly with sex offending, in all of our studies, it's become very difficult for us to achieve statistical power because we simply don't have enough sex offenders committing re-offenses of a sexual nature, and that is in no way advocating that sex offenders have to commit more sexual re-offenses for us, but what it does is make our jobs harder because of obvious statistical power. OK.

Thank you very much.

[Applause.]

Alisa Klein: Hi, everybody. Thank you for being here. This is a topic that isn't so pleasant to listen to some of the time.

So I'm curious just to know, if you could just raise your hands and let me know how many of you are researchers? OK. And how many of you do policy-related work or make policy, influence policy? OK.

So I'm going to take this discussion in a little bit of a different direction and look at some of the kind of policy questions that come up for me, and I'm going to pose a lot of questions more than I'm going to offer answers because these are the kinds of questions that I'm constantly grappling with and kind of keep me up at night, and I'm going to share some of them with you and also see if we can get a little bit of feedback from the other presenters about their thinking about how their research can translate to sound policy.

I actually want to pose a question and just hear briefly from each of you, Kristen and Elizabeth — how have your studies been received? How has your state, how has the federal government responded, because that's really going to lead us, I think, down a path of kind of talking about what we can do in terms of policy.

Elizabeth Letourneau: So that's easy for me to answer. I don't think my research has had any effect. It certainly has not in my state, and I don't think it has at a larger level, and part of that, I think, is because I haven't effectively targeted my findings to policymakers in my state. It's actually a question I was asked in Australia recently when I was over there presenting, and they said, “Well, you know, what have you done for the U.S.?” And the answer was nothing in terms of the effects that I'm having.

So, yeah, I haven't figured out how to translate. I'm so delighted to see so many hands raised when Alisa asked how many policymakers, policy analysts were in the audience, because that's probably the largest number that has heard anything that I've had anything to do with.

Kristen Zgoba: It's been a very interesting situation in New Jersey. The federal government was very supportive of our findings, certainly promoted the findings. The state, unfortunately, was not as supportive, if I can say that.

[Laughter.]

Zgoba: We began reaching out to the governor's office early on when we saw that our research was indicating that there was no reduction in sex crimes consistent with Megan's Law implementation, and, ultimately, we got no response.

We got no response for many months until our final warning that our deadline was fast approaching to NIJ, and that the findings would become public. And when that occurred, we were told we could give interviews, and the Associated Press was the first interview at which point it was then picked up by many, many newspaper articles. And it just kind of became a firestorm in the state, and, at the same time, everything sort of exploded, and Maureen Kanka came out with a statement and state senators came out with statements, and then the governor at that time immediately issued a statement within days saying that Megan's Law would never be changed and that no study would have an effect on changing the policy.

I can't imagine that given the sort of political background of our new governor that we'll see much of a change consistent with that either, so, unfortunately, that's the case.

Klein: Also thinking about it in terms of timing, the Adam Walsh Act with the Title I, which is the Sex Offender Registration and Notification Act that is mandating to all 50 states, 197 Indian tribes and the five U.S. territories, how to create a uniform system for public notification, and, as Elizabeth was discussing, how to tier offenders based on offense, not based on assessed risk and so forth.

So that was passed in 2006. We're coming up on a deadline, the final deadline of July 2011 for the implementation of SORNA. In the meantime, these studies have come out, several other studies have come out, and I've just been thinking about how this kind of information does either get kind of sidelined or ignored because we now have a major federal project on our hands of implementing SORNA, which essentially is going against what the data tells us is, in fact, effective.

And we see this around sex offender management policy community, management of sex offenders, that kind of policy, we see this all the time, that policymakers essentially often find themselves in a dilemma. We're seeing more and more research that's showing that a lot of the things that we are turning into policy, that we're seeing being turned into policy, are not effective, residence restrictions being the other significant way that sex offenders are managed when they return to communities.

So, you know, we have to think about what is compelling — not sex offenders — what is compelling policymakers to legislate in these ways when data is telling them otherwise.

So one of the things we do know — and this is something for all of you researchers to think about certainly, but also the policymakers here — we do know from a lot of research, ironically enough, that policymakers don't make decisions based — I mean, I'm saying something fairly obvious, I guess — based on research, the decisions that are made about laws that are implemented, especially around things that are very emotional, very painful for communities, individuals, families to grapple with. They're not making decisions necessarily based on what research tells us.

So one of the things we need to be thinking about is how can research play a more influential role in influencing policy, and how can we provide policymakers — this is the slightly more complex piece of this — how can we provide policymakers with the kind of cover that they need to make the decisions that might not be perceived as popular when it comes to sex offender-related policy.

We know that sex crime issues have little to do for people with facts and research, so we're talking about kind of communities. Common sense says if you want to protect kids from predators, you need to know where they are, thus community notification, thus residence restrictions. If we just move them away from where children congregate, we can protect them; it seems to make sense. And the terms that are used, you know, don't sound so bad. And so one of the things that policymakers need to be thinking about is how do you change or reframe those terms and the concepts behind them.

And then another very interesting piece of this community notification discussion is, again, what the public thinks about it. The Washington State Institute for Public Policy did some interesting research in 1998. They did — just in Washington, in the state of Washington, they asked people about their perceptions of community notification. And what they found was that almost 75 percent of respondents reported that they learned more about sex offenders, sex offenses, how sex offenders operate because of community notification; their awareness was raised, and over 60 percent said that community notification makes released sex offenders behave better. So they had a sense that it actually would influence sex offenders to feel like they're being watched. People know who they are, so they are going to be less likely to re-offend.

And the vast majority — and I can't remember what the exact percentage is; I think it was in the high 80s — felt safer knowing about convicted sex offenders living in their communities, and they indicated that they were more safety conscious, they took precautions, that kind of thing.

The question here is, you know, are policymakers making these decisions based on what they think the public wants to hear; if so, how do we educate the public properly, and then how do we get the policies to shift based on research, of course.

And then one of the things that just has come up for me in listening to these two folks or reading their material is, you know, all of the policies historically since the early '90s that have legislated these registration notification laws have been named after three different children, nationally known situations of extreme, deep pain of children who have been abducted, have never been recovered. In one case, we know, Megan Kanka was, in fact, raped before she was killed. Adam Walsh was never found; we don't know what happened to him. Jacob Wetterling was never found. These are the three children upon which federal policy has been set around community notification.

And so I just pose this question, you know, does this make it psychologically difficult for anyone to oppose or question these policies because somehow it might be detracting from the pain, the very real pain that we all feel around what has happened to these particular kids, is it an affront to the families, the bereaved families.

I also am struck by something that isn't talked about quite as much when we talk about notification laws, the sex offender registration and notification laws, and that is this difference between reportage and incidence.

So one of the things that some of us that do this work have a sense of is that the policies that we're increasingly legislating around sex offenders returning to communities are policies that may be having a deep influence on the decision to report, to bring to light situations of child sexual abuse and adult sexual assault.

We know that the vast majority of sexual violence is perpetrated within intimate circles, communities. With child sexual abuse, 93 percent is perpetrated by someone known to the victim. About — what is it? — 35 percent is actual family members of the victim, and with adult sexual assaults, it's about 64 percent of women we know have been raped, physically assaulted or stalked by an intimate partner.

So we know that this is a crime that is perpetrated within intimate circles, and the reportage rates are kind of in keeping with those statistics. We know that only about 12 percent of child sexual abuse is ever reported to the authorities, only about 16 percent of rapes, 20 percent is what Tjaden and Thoennes tell us. So, with sexual violence happening in these intimate circles, are we somehow, with these laws, keeping people from feeling like they want to bring forward these members of their families, their communities to — are we somehow keeping situations underground?

Let's see. And the last thing that I wanted to bring up is something that these two studies that we heard about don't focus on, but that is particularly significant, are the unintended consequences that are associated with community public notification on sex offenders.

We know that sex offenders returning to communities who are publicly notified upon suffer from loss of jobs and unemployment, employment instability. They suffer often from harassment and physical assault. They have chronic difficulties finding places to live, finding jobs, and they are frequently forced to the outskirts of communities into increasingly rural areas where they're not going to be able to access the kind of specialized supervision and services that they may need to not re-offend.

These kinds of stressors on sex offenders' lives are shown to actually raise their risk for recidivating. We know from the general criminogenic literature and we know from the sex offender-specific research that when sex offenders have stable jobs, housing, social bonds to the community in which they live and they are able to continue their family relationships, they are going to be less likely to re-offend.

So, certainly for policymakers, we need to be thinking about those kinds of questions, you know, what are the unintended consequences, what are the collateral consequences of the decisions we're making, especially when they're not based on the research that we're seeing.

So that is what I wanted to share, and I know that we're all open for questions now.

Karen Bachar: Please join me in thanking the panel.

[Applause.]

John T. Picarelli, National Institute of Justice, U.S.

John T. Picarelli: ... interest of trying to keep us on time, I'm going to get started in the hopes that well have a few late stragglers, but that's OK.

[Inaudible]

Picarelli: Excuse me?

[Inaudible]

Picarelli: You want me to speak like this? OK.

[Laughter.]

Audience Member 1: Just speak up.

Picarelli: Hi everybody.

[Laughter.]

Picarelli: I'm John Picarelli. I'm with the National Institute of Justice and its International Center. And its my privilege to welcome you to this panel today on the International Trends in Fighting Child Pornography, as one of my colleagues has corrected me.

This panel came about mainly because of the mission of the International Center. The mission of the International Center at NIJ is two-fold. One, of course, is to focus on international criminal issues, and I can think of no other issue that is more international and more internationally challenging than child exploitation. And the other is to act as a bridge between the United States and foreign countries in the importation and exportation of both ideas and technologies. And what we have here today are three panelists that represent that ideal that both through their concepts and through the use of technology are building international coalitions in order to fight child exploitation online.

And so today what you will hear is the truest form of what we call ideas across borders. The idea that borders may act as an inhibitor at times but we need to transcend those borders in order to deal with many different forms of crime. So today well have three speakers. The first is Catherine Cummings. She's the executive director of the Financial Coalition Against Child Pornography at the International Center for Missing and Exploited Children, which is closely associated with the National Center for Missing and Exploited Children, right here in Alexandria, Va.

Then, after Ms. Cummings speaks, well have Bjrn-Erik Ludvigsen, who is a police superintendent with the National Criminal Investigative Service in Norway, but also serves as one of the coordinators for what is known as CIRCAMP, the COSPOL International --Internet-Related Child Abusive Material Project. COSPOL is another acronym that's basically an effort through the European Chiefs of Police Task Force in order to focus on criminal issues that transcend national borders in Europe. So this is one of these thematic networks, and Bjrn-Erik will go into more detail on how that works.

And then following Bjrn-Erik, well hear from Per-Ake Wecksell, who is a detective inspector with the Swedish National Criminal Police in Stockholm. Per-Ake is in a position — a more interesting position in that he's working with both. He is the primary liaison for the CIRCAMP effort in Sweden, but because of the Financial Coalitions work within Sweden, he has had contacts with them as well. So hell focus most of his remarks on CIRCAMP, but you may hear him mention how the Financial Coalition operates in Sweden.

So each will have 20 minutes to speak. Afterwards we should have about 20 to 30 minutes for question and answer, so I hope you'll have plenty of good questions to throw at them. So without further ado, Ms. Cummings ...

Catherine J. Cummings, Executive Director, Financial Coalition Against Child Pornography, International Center for Missing and Exploited Children, Alexandria, Va.

Catherine J. Cummings: Good afternoon everyone. I appreciate the introduction from John, and I appreciate the opportunity to speak with you this afternoon about a very critical problem that many groups are fighting globally. The group that I will describe to you is the Financial Coalition Against Child Pornography. It started in 2006, largely as a U.S. initiative, although we do have a good number of global companies involved. Were very active now and expanding the network and the concept to other parts of the globe. And its very nice to see my colleague from Sweden, Per-Ake, because we've seen each other at a couple of meetings in Stockholm, which is a very nice city, by the way.

So what Id like to do is just tell you quickly about the sponsoring organizations for the coalition, and then a little bit about the problem were trying to solve, and then Ill tell you about the coalition.

As John mentioned, the National Center for Missing & Exploited Children is based just down the highway in Alexandria. I would assume that some of you in the room are familiar with this organization, since we work very closely with the Department of Justice and the Department of Homeland Security to provide services for families and law enforcement in the United States. The National Center is celebrating its 25th anniversary this year and plays a role, or originally was started to play a role to link law enforcement across the country so that everyone could do a more effective job of helping to find children who had been abducted and gone missing.

The group has expanded its mandate, and in addition to supporting law enforcement and missing children, we also focus on child sexual exploitation issues. In 1998, the United States Congress asked the National Center to set up a hotline, or a 911 for the Internet, which we call the CyberTipline. The CyberTipline receives reports from the general public and Internet service providers when they find suspicious sites or other elements that have to do with child exploitation on the Internet.

The sister agency is the International Centre for Missing & Exploited Children, also based in Alexandria. We work to combat child abduction and child sexual exploitation globally. Some of the ways we do that is by providing training and assistance to law enforcement, legal professionals, governments, and NGO's around the world, as well as advocating for changes in laws, and treaties, and systems to help protect children worldwide.

A quick side note, particularly since so many people at this conference have a background and an interest in research. The International Centre compiled a study and released it, initially in 2006, and it actually has been updated five times. You can find it on the Web site: www.icmec.org. This is a study of child pornography laws around the world in 187 Interpol member countries, and what we found is more than half have no laws at all that speak to child pornography specifically. So part of our work is to try to build a global landscape that is more consistent and more effective when it comes to fighting child pornography.

A little bit about the problem. The Financial Coalition Against Child Pornography is focused on commercial child pornography. There is a very robust trade of these images and videos between the offenders or the fans of this stuff where no money changes hands. Its peer-to-peer trading and things like that. What we focus on is the commercial — a lot of times its organized crime that collects these images and sells them, or collects these videos and sells them for subscription prices, and people buy monthly or yearly subscriptions to these Web sites.

It is a global problem. It has been fueled by electronic payment tools like credit cards, debit cards, PayPal, Western Union, as well as newer currencies that are popping up. When we talk to people about this problem — I doubt this is true with this group, but other groups will say to me, Well, isn't this really adult entertainment or adult pornography where women might be dressed up to look like teenagers or underage girls? And that is not the case. Tragically, there is a study recently done that the National Center was affiliated with, that looked at the images held by the people arrested. And 83 percent of those arrested were holding images of children 6 to 12 years old; 39 percent had images of children 3 to 5 years old; and 19 percent had images of infants and toddlers under the age of 3 being raped and sexually abused. And probably the individuals who are on the front lines fighting this will tell you that those trends are getting worse and not better.

Why is this a business? Why do we put together a coalition of Internet and financial companies that has anything to do with child pornography? If you can step away from the emotion of the problem and look at it from an economic standpoint, children around the world are plentiful and easily accessible, unfortunately. Child pornography is easy and inexpensive to produce because of technology today. There is a very significant consumer market for this in the United States and outside of the United States. It is enormously profitable, and there's virtually no risk, although I can tell you point number five, we are changing that through the very concerted efforts of law enforcement around the world, as well as help from private industry, which is where we come in.

These are some of the solutions to fight the problem. And I'm going to talk to you about the last bullet. The Financial Coalition Against Child Pornography has one goal, which is to disrupt the economics of this business. Law enforcement, arrest, prosecution is always the first priority in anything we do, but this is a civil initiative. So it was formed on the premise that we cannot arrest and prosecute our way out of this problem. So in 2006, Senator Richard Shelby of Alabama, who at the time was the head of the Senate Banking Committee, convened a meeting of some of the credit card and financial companies and said, If we were buying and selling heroin and cocaine over the Internet and people were using their credit cards, we would do something about it, and this is far worse.

So, I am happy to report that the companies have stepped up to the challenge. This is a list of our current members, and it might be hard to read so Ill read off some of the names for you: the American Express Company, Banco Bradesco of Brazil, Capital One, Citigroup, Deutsche Bank Americas, Discover, Google, HSBC North America, JPMorgan Chase, MasterCard, Microsoft, PayPal, Visa, Wells Fargo, Western Union, and Yahoo!. Importantly you'll see its a collection of Internet companies and financial companies because together we all do a much better job of fighting this problem. Each of the companies on the list does whatever they can to fight the problem but we have learned that we can really make much more progress if we share information and help one another.

In 2006, the first priority was to develop a process for undercover credit card transactions in collaboration with law enforcement. A little bit of background. If a company like Visa or MasterCard or one of the banks suspects fraudulent transactions on their system, the security and risk people at those companies will do an undercover transaction themselves to follow the flow of funds and find the bad players who are in the payment stream. In the United States the mere attempt to purchase child pornography is a crime. So if you're working for MasterCard's security department, you cant do an undercover test transaction or you're going to have the FBI knocking on your door saying, You have an employee who is trying to access child pornography.

So because of the relationships that the National Center for Missing & Exploited Children had and has with law enforcement, we were able to recruit Immigration, Customs and Enforcement, FBI and some other law enforcement agencies to help us out with undercover transactions. Then we built out that tip line that I mentioned to you, to accommodate information from the financial companies. Something that I want you to keep in mind is that all of the sharing of the data is well within privacy and data protection laws. We have a lot of lawyers at every meeting and they keep us honest. Also, the process is to follow the merchant side of the payment stream, not the consumer side. Any action that might be taken against consumers would be taken by law enforcement. What were after is to shut down the payment account that a merchant has fraudulently opened — lets say on the credit card system.

How am I doing on time, John?

John Picarelli: ... 10 minutes left.

Cummings: OK. Great. Thank you.

Id like to take you quickly through the CyberTipline process so you get a sense of how the financial services companies interact with this. A URL is reported into the CyberTipline, as I mentioned, by a member of the general public or an Internet service provider. And that can be done by phone or via the Internet. An analyst at the National Center for Missing & Exploited Children visits the Web site and confirms that it is commercial child pornography. An undercover financial transaction is conducted by law enforcement. Right now were doing them with credit card accounts that have been contributed by some of the banks who are members. Specific details of that transaction are provided to the payment company. So an American Express or a PayPal or a Discover will get an e-mail or an alert that says, such and such a date, an undercover transaction was performed by ICE for this child pornography Web site. Please keep an eye out for when that transaction goes through. And sometimes it doesn't go through, and Ill tell you about that in a moment. When the transaction goes through the payment company isolates it and identifies the business and the location of the merchant responsible for selling the child pornography. The payment company then goes into the CyberTipline, and this is through a virtual private network, a very secure network, and only very specific companies have access to it. They amend the original report to include information on the merchant like city, state, location — or country. Also the merchant bank, city, state, country, et cetera. And other details.

The completed CyberTipline report is available to federal law enforcement for 10 days, where they can take the tip and say, Were going to add it to an ongoing investigation, or we might — they wont tell us the exact details, but they say, Were going to keep this. And if that is the case — I beg your pardon — if that is the case, if law enforcement indicates further action, the entire process stops and the financial industry is notified of a possible investigation. And then they're given instructions about what to do next as it relates to that merchant account.

In box number eight, if law enforcement declines to take the tip, the financial company is alerted and pursues the violation of association rules or merchant agreements that they would do under normal conditions when they find illegal content on their system. That basically means that they contact the merchant bank and say, You have this player on your system who is selling this contraband. Please close down that merchant account immediately. And that is what happens.

So what I just described to you is the backbone of what we do in the Financial Coalition. What we have found that it is a great form for helping each other in other ways such as disseminating trend information and other data about these Web sites. It might include price points. It might include key words that the commercial child pornography trade now uses to attract people to their sites. And so we send out these alerts, this type of information so that an AOL, a Yahoo!, a MasterCard, everyone is able to run this information against their systems and do a better job of cleansing their systems of these businesses.

We have also published two thought-leadership pieces: a white paper and a best practices document. And we have found a lot of benefit in aligning with other industries. In this case, specifically the mobile telephone and mobile provider industry in the form of the GSMA based in London, as they try to get ahead of the mobile Internet being available on phones, and people accessing this content via phone. So more and more we are collaborating with that industry.

Now people will ask us, OK, you've been in existence since 2006, how do you know anything is happening as a result of your efforts? They ask us quite often, What about arrests? We do not measure our success by arrests because we are a civil initiative. But the things I can tell you is that the subscription prices to these Web sites has gone much, much higher. It used to be $29.95 a month. Now they can be $300, $500; sometimes we see prices as high as $1,200. Its increasingly difficult for law enforcement to do an undercover test transaction with a traditional payment tool, meaning credit cards, debit cards, PayPal, et cetera. And if its more difficult for them to do it, we've got to assume that the average consumer is having trouble as well. We've gotten very good feedback from law enforcement, and fewer commercial child pornography sites are being reported into the National Centers CyberTipline.

But this is a global problem and it requires a global solution. We have been very active in regions around the world supporting efforts in any way we can. You cant just take this U.S. model and plop it down into another country for a host of reasons. But there are things we've learned, successes we've had, challenges we've had that we are sharing with other regions of the world, and we are making great progress. You'll hear more about the Swedish Financial Coalition, and we've played a small part in that, and were very proud of that, and proud of where that group is headed. And a little while ago, a couple of weeks ago, I got back from Tokyo, where there is significant interest in the Asia-Pacific region. And some things brewing in Latin America; that's going to take a little while longer.

I very much appreciate your attention and would be happy to answer questions or further the conversation after our speakers are finished. Thank you very much.

[Applause]

Bjørn-Erik Ludvigsen, Police Superintendent, National Criminal Investigation Service, Oslo, Norway

Bjrn-Erik Ludvigsen: Good afternoon ladies and gentlemen. My name is Bjrn-Erik Ludvigsen. I [am] with the Norwegian National Police. Would be the equivalent of the FBI without the big budget and the three-piece suits.

[Laughter.]

Ludvigsen: I'm also the project manager of CIRCAMP, the COSPOL Internet-Related Child Abusive Material Project. We do a lot of aggregations, and we do it because we want people to actually read what it says. And I will explain a little more why were called that and what other names we use.

I'm going to talk a little bit about how we came about. In 2004, OCTA, the organized crime threat assessment within Europol, tried to look into their glass bowl and see — or the crystal ball — to see what type of crimes would be a challenge for us in the future. And they usually try to see things that go cross-border or international because none of the law enforcement agencies in Europe or here in the U.S. are able to handle some of these crime types by themselves. Then they give the job to the European Police Chief Task Force, the EPCTF, and they started up these COSPOL groups. It actually stands for Comprehensive Operational Planning for the Police — no sorry, Comprehensive Operational Strategic Planning for the Police.

And they identify the different types of crime like drugs and also the distribution of child abuse material. Then they started our group. Our group was originally called the COSPOL Group on Child Pornography. One of the first things we did when we had our first meeting — and I don't mean to offend anyone because you have child pornography in your names, but we changed the name to CIRCAMP. We don't deal in child pornography; we deal in child exploitation and child abuse images and films and files. Pornography is legal in most countries. Pornography is consensual in most countries. Many people use pornography. The raping of a child is not pornography. That is our stand, anyway.

We are the project manager from Norway. You see the other countries that are members. Being a [forerunner] country means it is a country that is supposed to try out different things that we do and see if it works. And if it does, well try to translate that to other countries that are not members of this group. So we try to make kind of a standard of how to do things.

Up, sorry. By the way, were also supported by both Europol and Interpol so we have the international level covered with both communication and strategic and operational handling of information.

I'm not going to read all this to you. Our primary goal is to try to make it difficult for bad guys to make money off children being sexually abused, especially on the Internet. We also to find a common way for us to police the Internet. In our view, the Internet is just a continuation of general society and national laws should apply on the Internet. That part of the Internet which is located in my country, the Norwegian part of this network, Norwegian law applies. Its not a different dimension; its not a different country; its not a different place. Its just a bunch of computers and wires tying things together. And people are doing stuff on the Internet that needs to be policed.

We think that child abuse material has a harmful effect on society, and we would like to try to limit that as much as we can. One thing is the people like Catherine was talking about, the ones who buy child abuse material, you want to stop them but you also want to stop the people that are unwillingly being exposed to this kind of information.

We started out doing what every police Internet project does. We started going after the peer-to-peer people because its easy, because they're plentiful, because they distribute really severe child abuse material and we know how to take those people down. We know how to secure the evidence. We know arrest them. And we know how to search their houses and their computers. This is something we did from 2004 to 2006. And then we kind of figured out, well this is something we can do by ourselves; we don't need an international group to do this. I can do this in my country, as we did actually in 2004, and make all these cases and send them around the world. In 48 hours in 2004, we generated 13,000 cases all over the world — 2,000 cases for the U.S. It is an easy way to make cases. And we decided we don't have to do that as a group.

So we went to the police chiefs and we said we want to do something else — were going to target the child abusive material that is distributed commercially, especially that on the Web. And we made a three-point action plan that we tried to follow. The first part being to block child abuse material. We have done this — were now in 2006; we had done this in Norway since 2004. And we said this is a good idea but Norway is not really the center of the earth. We need to have more people that work with us. So we suggested that would be part of the plan. The second plan would be to go after the legal element, the payment systems, like Catherine said. Identify them, tell them that they are actually being abused so that they will cut off the merchant. And the third part is try to arrest the people who actually make money off this. This is, of course, the most difficult ... most difficult part, and we haven't really succeeded much in that.

I'm going to talk about the blocking today. We want to prevent the children being abused again and again as masturbation material for adults, because that's what they use it for. They don't collect it because its like stamps. They use it to masturbate. They are sexually interested in children. The distribution is illegal in most countries that have any kind of child abuse legislation. As Catherine said, many countries do not. But those that have, distribution is always illegal, while possession may be legal still. In my country, display is illegal. If you actually go to a site looking for this kind of material willfully and repeatedly, that is a crime by itself, because you don't have to download anything anymore. Everything is online and with the speed we have on our Internet connections, you don't have to possess anything in the ordinary sense of the word.

And by reducing the access to child abuse material we think that we can reduce the market. Take away the customer, there is no need to produce and offer as much material. This is, you know, capitalism at its best and its worst. If there's a need, there will be a supply. Take away the demand for child abuse material. And we do it by targeting the whole chain: the contents, the links sites, the payment sites, anything we can see is a link in the commercial distribution of child abuse material.

And we wanted also to raise the awareness in the population — both the ones that look for it and the ones that are accidentally exposed to it. And with this I'm making another aggregation, of course. And instead of calling it the child pornography filter, we call it the child sexual abuse anti-distribution filter because that's what it does. It limits the distribution of child abusive material. And this is how it works. Well, this is really simplified, but you'll get the idea. This is kind of like how the Internet works. Most of you, if you ever spend time on the Internet know that the Internet does not work with letters. It doesn't work with words, it works with numbers and IP addresses. So when you type something into your browser, it needs to be translated to an IP address so that your computer — your browser knows where the content you're looking for is. And it does this by going to a DNS server, looking up who is responsible for childporn.com, in this case. And the DNS will say its IP address this and that. And your browser will connect directly to that server. It may be in Russia, it may be in U.S. You don't know. And if you punch child pornography or childporn.com into your browser, you will get childporn.com. Of course, I couldn't show you how this site looks, as I didn't want to spend time in your jails.

[Laughter.]

Ludvigsen: You have really good laws against the people you arrest for this crime, really good laws. Unfortunately, of course, you don't arrest as many as I would like but when you get them you actually give them a good sentencing, which I cant say about my own country unfortunately. Well, you type in what you want, you get what you want. This could be your online newspaper, this could be children being raped. By introducing a new layer where you will still punch in what you want — the child pornography or the childpornographysite.com — you will check it against a list of domains that we have given to the ISP. All of the domains on this list have been checked by the police. The contents have been seized. We have downloaded everything. Everything is traced and saved and secured. And then we say that the images or the content on this site is in breach of our laws. Our national legislation says that this is illegal to distribute. Then we will put it on this list. The ISP will check it against that list when you try to access the site and if its on the list, you will get this site instead. Instead of the child abusive material you saw before, you will get this stop page. And we will put — this is the Norwegian one, by the way. And I hope you can read what it says.

We don't say that you have been trying to access child abuse material, but we say your browser has been trying to access child abuse material.

[Laughter.]

Ludvigsen: So were not pointing any fingers here. And the reason for this is that, quite frankly, some people are not that intelligent when they are on the Internet. Some people are mindlessly surfing. Some people are clicking everything that looks like a link, even if they get it in an e-mail. Some people surf borderline pornography. They look ... they'll go for the teen sites with the 18 and 19 year olds. And they're very quickly linked to sites that contain children. So its not always a willing act to end up on one of these child abuse material sites. That's why we said your browser. In addition, there's Trojans and viruses and all kinds of bad things that will redirect you to sites that you don't want to go.

In addition we say that we don't trace anything. We don't know who you are. We don't make any cases from the people that end up getting this site or this page. This is just a pure preventive measure against the distribution of child abuse material. And in my view, prevention is the most noble of all police work.

Also we have information about the operation of [indistinguishable], the CIRCAMP group. Just to tell people, this is not something we only do in Norway. This is something we do together because, as you all know, the Internet is not limited to one country or one continent.

These are the countries that are in CIRCAMP that run the blocking system right now. And what happens when I find a new site, I download and [indistinguishable]; I do all the things the police should do when they secure evidence, and I will share it with all these guys, so they don't have to go looking for these kinds of sites on the Internet. They will just get it from me, check it according to their own legislation. If its illegal in Finland, then they will just add it to their local list of sites that I've blocked. So even though we share all the material, all of this will look different because we all have different laws. In my country, for instance, almost everything is illegal. Even computer-generated, drawn pictures are illegal if it depicts a child.

These are countries outside of our little group that we also work with. So New Zealand on the other side of the world and Switzerland, its a European country, but they're not in the European Union. And also there's the United Kingdom that has a similar system driven by the Internet Watch Foundation, which is a non-governmental organization, and is financed by the Internet industry.

These are just some examples of stop pages. This is the Swiss one, Danish, Finnish, Italian, New Zealand's — New Zealand's The Swedish one, which I think Per-Ake will tell you about. And the one from Malta. And this is very important people, because this is not the Holy Grail of child abuse material fighting. This doesn't stop any of the child abuse material from being produced or from being distributed to other countries that are not members of this.

How am I on time?

[Inaudible]

Ludvigsen: Oh. So this is something we do in addition to ordinary police work, not instead of. So you cant introduce blocking and say, Oh, well problem solved. I don't have to do anymore. Then your work really starts. But then you will have a huge chunk of work that you don't have to do. Again, if you are able to limit the access to that material.

This is just information about our project. You can find it on the Europol page. This is on the Interpol page, on the THB, the Trafficking and Human Being Web site for Interpol. We also have our own Web site. Its on CIRCAMP.eu, where well have — its kind of limited thus far, but we will have more information on that site about terminology, which I think is very important. And a little bit about how we think when we try to limit this kind of material being distributed.

Our plan ahead is to continue the work that we do now until 2010. That doesn't mean that were going to quit doing this in 2010, but CIRCAMP as a group will probably have another aim. And the countries that have the blocking will continue to do that on their own account. We plan to make a worst-of list of domains. And a worst-of would be — because now, the list we have in Norway is based on Norwegian legislation. In Sweden, its Swedish, et cetera. But there are a number of countries where we don't have any contacts with the police. The police don't have the people, the knowledge, the interest to do so. And we plan to make a worst-of list of sites that would be illegal anywhere. That means it will be with children that are younger than 13. It will be the most horrific abuse of children, or very particular sexual focus on any of the images on that site. It has to be a real child, for instance. Not computer-generated, which is legal in some countries. And we plan to distribute this through the Interpol National Central Bureaus, because every one of the 187, was it, Catherine? Yeah. Every one of the 187 countries had a contact bureau for Interpol, and we need to spread this list of worst-of sites to all those contact points and then the ISPs so the access service providers can contact the Interpol police office and get access to the group and implement it, based on their terms of service, their ethical standpoint or their policy. And we are often contacted by Internet service providers that want to do something good for the Internet, want to make the Internet a better place, but have no one to turn to because the police in that country are unwilling or unable to provide a list according to that country's legislation. The list is something that we will do.

We will also continue our cooperation with Germany, for instance, which actually wrote contracts with six other larger-sized ISPs in April that will start blocking very soon. It is very important for us because it is a big country, or by European standards its a big country with 90 million people. And we will work with law enforcement in any country — any country in the world, although we are a European project.

To sum up the whole thing, we are a very sharing group, but we will only share with law enforcement when it comes to child abuse material because we look at child abuse material as evidence of a crime. Its a picture that usually the perpetrator himself has taken, and it shows the crime scene, and it shows at least parts of the perpetrator, and it will show the victim. And all these things are important things for the police to use to try to identify the child and try to stop the abuse. So that's why we will only share child abuse material with the police. Well happily work with any NGO on other things, but we will not share the images with them. And we will share every smart thing that we've ever thought, any software that we ever made and any contract that we have ever written with any ISP to bring people up to speed much quicker than we were when we first started.

The benefits are that its very cheap. This is — some people will say differently, and especially some ISPs will say differently, but this is actually pretty simple, simple readdressing on the Internet and they do this every day. This is not brain surgery in any way. We use ordinary software, ordinary techniques, off-the-shelf things that you can buy. There's nothing really peculiar about the operation. I know Per-Ake will talk a little about a special software that we have, but you don't really need that.

It is very effective. Compared to what you invest in this system and what you get out, its very, very effective. I'm not going to give you so much numbers — actually I can see from my country, but we have very strict rules, we have about one display of this stop page that I showed you before per 300 people in my country per day. So we have like 15 to 18,000 displays of our stop page on a 4.7 million population. So it is quite a number of people that are actually looking for, or accidentally end up on child abusive sites.

And we believe that it is preventive. It will give people looking for this willingly, a kind of a heads up in saying, What are you doing? It will give people that are swimming in murky waters kind of a way to step back, age-wise, when it comes to the pornography that they use. And it will give the people that are not-so-knowledgeable when they surf the Internet a way not to be exposed to children being raped, which they easily can be.

That is the presentation that I had planned, and Ill be happy to answer any questions when the Q and A starts after Per-Ake. Thank you.

Per-Ake Wecksell, Detective Inspector, Swedish National Criminal Police, Stockholm, Sweden

Per-Ake Wecksell: Ill have to put this down again. My name is Per-Ake Wecksell, but you can call me, as Bjrn, Pela. I work for the Swedish National Criminal Police, our anti-crime section on the child protection team. I come from Sweden, the land of IKEA, Volvo, ABBA ...

[Laughter.]

Wecksell: ABSOLUT Vodka, and Greta Garbo.

[Laughter.]

Wecksell: I'm going to talk about the collaboration with the industry in this matter, about challenges that we have met, and finally short about the Swedish Financial Coalition.

As I will talk on a national level now, instead of the CIRCAMP level, I will tell you the Swedish matter. And it all started as an initiative from Norway and Bjrn-Eriks team. It was their criminal investigation team who taught us, and we gathered together the representatives from law enforcement and industry to discuss whether we should have this blocking system in Sweden or not. And suddenly, an agreement was made and a contract was written between several Swedish Internet service providers and the Swedish National Criminal Police.

And this collaboration between the police and the Internet service providers is completely built on a volatile basis and is the crime preventive work. As Bjrn-Erik told, in Norway its forbidden to watch these sites of child abusive images but its not in Sweden. There is a law going to be, but its not still written. So, however, its not forbidden, but it is forbidden to be in possession or distribute this kind of material.

This is crime preventive work. Today we have a collaboration, contracted 16 ISPs in this blocking solution. And they have a coverage of about 80 to 90 percent of the Swedish Internet users. And new contracts are assigned, on the way, and now we are talking to the local networks on the cities around Sweden.

However, one of the largest Swedish ISPs didn't want to participate in this collaboration from the beginning. I don't want to mention their name because its audio taped here, but ...

[Laughter.]

Wecksell: The biggest Swedish newspaper told about it. A poll was made and a huge majority of the Swedish population said they should block — they should contribute to this work against this matter. And the criticism was too difficult for the company, and the next day, after the article was published, they told us that they want to be in the collaboration. But I'm sure that you already had read it.

[Laughter.]

Wecksell: Yeah? You have recently heard Mr. Bjrn-Erik Ludvigsen from Norway talk about how the blocking of a Web site actually works. I'm not going to repeat that. However, we, the Swedish NCPs, receive data information from [the] public regarding child abusive images on Internet sites. We get referrals from ISPs. We get information from the other European network, the CIRCAMP network, and from the EPCOT, the Swedish non-governmental organization, EPCOT's hotline. Also, we got these URLs that were found on computers which were seized all around Sweden during investigations. The role of the law enforcement is to collect those reported URLs and to review and investigate and make a judgment if these Web sites are legal or not, regarding Swedish law. If they are considered illegal, they will be blocked. We create and send a text file to the providers that will see that the sites will be blocked.

Bjrn-Erik also told you about a special program, and here is the program we use to make life a little easier when we deal with this matter. Its created by the Danish police. And we put in a text link for all the information we got, and it [indistinguishable] to have it on the domain level, as you can see. And we click on it and check all these sites, and if we consider them illegal we save the sites and we give them a red flag, as in blocked. If its not illegal, we give them a green flag. You can see, you have this flag here from some country. In this case, its just one country's flag here, but otherwise it will show all the countries where the Web sites belong to. This is a good instrument that we use. The role of the Internet service providers is simply to implement the blocking list or the DNS servers. They have to provide statistic referrals and implement the stop page, which you recently have seen. As Bjrn-Erik told you it says, Your Web browser has tried to contact an Internet Web site, and what penal code is used, in this case, Chapter 16. And where to turn to if one has some complaints to do.

And this stop site is shown double as many times as the Norwegian — 1,000 times per day because we are double the population in Sweden regarding Norway — compared to Norway.

I will show you our written agreement. I will not.

[Laughter.]

Wecksell: I will. OK. This is signed by the chief of the National Criminal Police and the chief of the Internet service provider. I will just go through it very quickly. You see that the corporation is aimed at restricting access to, and circulation of, descriptions of children in pornographic pictures on the Internet, as well as in that way preventing children from being sexually abused. It says about NCPs commitments, the Internet service providers commitments. I hope you all manage to read this now. And it states that the parties shall meet at least once a year, in addition to that when necessary to elevate the corporation. I can say that we meet three to four times a year. The agreement can be cancelled by one of the parties with immediate effect. Now I think I have this in the slides, so you can read it more carefully if you want, later.

OK. So is everything going smooth and nice with this? Yes, it is. But we have a few small challenges. The Swedish Post and Telecom Agency monitors the electronic communications and postal sectors in Sweden. They have been with this meeting for two years, and after two years they came to the meeting and brought up the issue of the agreements between customers and ISP approval to regulate Internet traffic carrying child abusive material. Lack of such regulation could lead to imprisonment for the responsible person at the Internet service providers. I can tell you that participants got their coffee stuck in their throats. This person from the Swedish Post and Telecom Agency, he really liked that, so he told them time and time again about this chance to go to jail if they have no regulation. But they went home and checked their agreements between them and the customers and everything was written down and good.

Another challenge is, OK, you are blocking child abusive images today, but what will the next step be? Bestiality or something else? Is this the first step in blocking the whole Internet or what? Norway started early 2004 and we started 2005 and it will be nothing else. It will stay with child abusive images. I can tell you for that by our countries. I'm sure that Bjrn-Erik will agree with me.

By the end of 2008 we made a new agreement between us and the ISPs for the enrollment of referrals, the page before coming to the Web site, with the stop sign. Some other adjustments were also made. For example, to involve non-commercial pages in the agreement. But it proved controversial to make changes in the agreement. Now were talking about [indistinguishable] and slippery slope again. Two of the largest Internet Service Providers, one that you remember from the earlier slide, and another said they didn't want to help the police with the investigation. And they said that we could do it by ourselves. The investigation, giving us the site, the referrals. I don't know about that, but ... finally we have these meetings and they signed a new agreement. But a response came quickly from ...

[Laughter.]

Wecksell: The first opportunity to give us referrals, and we expected tens of thousands of referrals. We got 50 — five, zero — because the agreement says nothing about how many referrals we were supposed to get.

Finally, the last challenge was BitTorrent, Pirate Bay. Anybody heard about Pirate Bay? You know about BitTorrent? We received information that a lot of the worlds largest BitTorrent tracker had files that contained child abusive images and material. Files, it was films and pictures. BitTorrent is a file sharing protocol that enables file transfers. Pirate Bay offers — uses the latest Hollywood movies, the latest games, or whatever the latest books, e-books. And the tips, information about child abusive images and material on Pirate Bay increased, so we had to decide whether this site was going to be blocked or not. We called a meeting, in a very high level, international police, Swedish National Police, and it was decided that if they will not take away this abusive material over the weekend, they will be blocked. So I sent out this information to the Internet Service Providers, just to prepare them for some Internet attacks, who could be. And I sent it on a secure way to those responsible on the ISPs. It took — then I went to my holiday. I go down to the south of Sweden to meet my son, and I just come one hours drive when the telephone called. Hi, its Pirate Bay. And the name of the guy. Are you going to block Pirate Bay? And directly after we hang up, the Aftonbladet, the Swedish biggest newspaper called. And after that, a lawyer for one of the biggest ISPs called me.

[Laughter.]

Wecksell: Are you going to block Pirate Bay? The circus started. It was a big fuss in the mass media, and we received a lot of complaints by mail. People said, This is going to be the new China. We want these Torrents to live. Keep away from Pirate Bay. Three major Swedish Web sites were hacked, and they put in our stop page instead of the material who belongs to it. One of the Web sites was from one of the most popular soccer teams in Sweden, and their supporters were crazy about us. People thought we were the ones that blocked the Web site. And the circus went on. However, on Monday morning, I went to work. The team which I worked with checked out the Pirate Bay, and the child abusive material was gone. However, the turbulence continued a couple of weeks. But it led to something good. We [had] shaken the Pirate Bay a little bit and now we have a good collaboration with them, and they even put our e-mail address on their Web site.

OK. Results in the end of this blocking. We can see that the child abusive material is less available in Sweden. ISPs take more responsibility. The Swedish public is very much positive about this work. I can show you that we got mail every day, people thanking us. And we also get telephone calls by people who run into these sites, come to the stop page, and they call us and say, What is going to happen now? Are you going to come to get me?

[Laughter.]

So. Yeah. But were not.

This is a political, very well accepted method. And I will say this has a large preventive effect. So, the next step. Like Catherine talked about, there was a Financial Coalition going on here in the United States, and the next stop for us has now been taken. The nongovernment organization, EPCOT has looked at the Financial Coalition in the USA. And I would like to thank you, Catherine, for all the help to bring the Financial Coalition to Sweden. We have a collaboration now between Skandiabanken and the Swedish National Criminal Police. And it differs some from the U.S. Financial Coalition. In Sweden we have no domains or servers that are hosted here, and if we have, we will start an investigation, at least we don't find them. What we do is that we receive a number of accounts from the bank with complete information to make purchases on the Internet, like Catherine recently told you about. So we do it, something like the Financial Coalition in the States do, but not really like that. We have a cooperation between the banks, the Visa, the MasterCard's, and the aim is to prevent and obstruct payments for child abusive material through the financial system.

Yes. I think I will stop there. And here is my address if you want to e-mail me, and I will be glad to — thank you for your attention and I will take questions later. Thank you.

Bethany Backes: So I’m gonna be very brief and just say that today we’ll be hearing about two ongoing NIJ-funded studies on custody evaluation. Both studies will be concluding within the year, and the final reports will be available and accessible through the National Criminal Justice Reference Service.

So our panelists today are Dr. Daniel Saunders, a professor at the University of Michigan’s School of Social Work; Dr. Chris O’Sullivan, who is a research consultant currently working with the New York Legal Assistance Group; and the honorable Dale Koche, Koch, sorry, a senior judge with the state of Oregon. And we hope that today is the start of many discussions on this topic. And at this time I just want to ask everyone to please turn off their cell phones or any electronic devices to vibrate or silent. And we’re gonna begin with Dan.

Daniel Saunders: Good morning, everyone. Hope you’re doing well. It’s good to be here with you. Thank you, Bethany, thank you for putting this panel together and for your introduction. And I wanna commend NIJ for making this move into a new area — the family law side of the law.

In the early days, the focus in helping survivors of domestic violence was to make sure that offenders were arrested just like any other offender and that there were restraining order laws and that we had good stalking legislation. And it’s been only fairly recently that advocates and researchers have become aware of the horrible injustice when survivors finally escape from domestic violence and then are faced with continued stalking, harassment, abuse and then, low and behold, the worst trauma that survivors, I think, can ever go through is to get that piece of paper in the mail that says your partner, your ex-partner wants custody of your children. And so the trauma is multiplied times three where women — it’s usually women — are faced with sometimes losing custody to a person, they believe, will continue their abuse — abuse of the children, abuse of them.

And so my interest was piqued many years ago doing divorce counseling, working with men who batter and then more recently with the supervised visitation program evaluation that I helped conduct of safe havens. And there we saw on average across agencies about 20 percent, 10 to 20 percent of the noncustodial parents were women ordered now to come and visit their children. So the, the awareness I think within Office on Violence Against Women and NIJ has really been heightened, so I really appreciate the focus that’s now being given.

So I’m gonna present some pilot data of a survey of custody evaluators and then a little bit, I’ll give a preview of some of the interviews that we’ve done with survivors.

First, I have to find the right button. Oh, OK.

So my collaborators at the University of Michigan are Rich Tolman, Karen Staller, Kathleen Faller, and then a whole team of research associates and assistants, and then consultants from, from law, from child custody evaluators, social scientists — about two pages worth of names that I could put up there for you.

You probably know this already that when women, and I’m talking primarily about women — men are battered as well, and you know, I have a whole presentation on gender equality and inequality regarding who are perpetrators and who are victims — I’m gonna speak mostly about women as survivors that when people leave an abusive relationship that’s not the end of the abuse, and in fact, there’s a tremendous amount of stalking that goes on; the risk of homicide increases, which is one reason why many women realistically stay in these relationships — they’ve been threatened with their lives.

And then we have many other consequences as well. These men are likely, half of them are likely to find a new partner to abuse; therefore, exposing the children again to more violence in that relationship. They’re likely to undermine the parenting of the non-abusive parent and on and on. I’m sure many of you are aware of, of these consequences.

For a long time, custody evaluators and judges talked about high-conflict relationships and didn’t realize that hidden within these high-conflict relationships, there is a great deal of domestic violence. And now we know from some very good, well-documented studies that 25 to 75 percent of contested custody cases involve domestic violence. And yet we still hear evaluators and judges talk about high conflict and don’t put the emphasis where, I think, it needs to be, which is on the violence that occurs within visitation and exchange cases based on some national surveys. The primary reason that families are referred for visitation and exchange is domestic violence followed very closely by child abuse.

There are a number of negative consequences. I mentioned losing custody to an abuser is an obvious one. We have other negative consequences as well — having unsafe supervision, supervision by a friend or relative when what’s really needed is supervision in a safe environment, a supervised visitation program with close supervision by a paraprofessional or a professional with separate entrances, separate parking lots, you know, all the safety mechanisms. And then we also see where too often, I think, there are referrals for couples counseling for mediation, which can undermine victims’ rights or place them in more danger. In terms of what we know about negative outcomes and the risk factors, it’s a very sad situation that too often the abuse is never even detected by evaluators, by mediators. And then even if it is detected, it is not considered seriously in the determinations, so it may sit there in the record but not be used adequately.

We know that if judges are well trained, there’s a tendency for them to give sole custody to abused mothers. We have a bind in about half the states now: We have what’s called a friendly-parent statute, which means that, you know, one of the factors for determining custody is that the parent must show that they’re willing to facilitate a good relationship with the other parent. But that puts victims in a real bind because they, for good reason, are reluctant to co-parent, to go into mediation, and as a result, they’re labeled as uncooperative, unfriendly, and that goes against them. And that’s a powerful effect, even in cases where there’s a presumption that custody should not go to the abuser. So we’re starting to uncover some of these risk factors for the negative outcomes.

OK, what is this big figure here? This is our conceptual framework that we started with on this project, it lays out the major research questions and hypotheses. So starting in the middle with my red laser pointer that I don’t have, but it’s the one that’s, it’s easy to see because it’s that big bold one, kind of in the middle, off to the right. So the main variable that we’re interested in, “To what extent do evaluators believe that survivors are making up stories, that they’re making false allegations of domestic violence?” And then if you go just up from there, we’re trying to see, ”Is that related to other beliefs that child abuse allegations are made up, that parents are alienating the children from the other parent and other kinds of beliefs? And then backing up, we’re interested to look at the background, the training of evaluators. Does that feed into the belief that survivors are making up stories about abuse? Gender, whether they themselves know survivors of domestic violence. I’m over in the background traits, the lower left here.

And then certainly, we want to look at myths about domestic violence, whether those myths are held by evaluators and if those are related to a belief that stories are being made up. And then what we call these “core beliefs,” these distal factors, which are more abstract beliefs — beliefs that social hierarchies are a good thing, social hierarchies between groups, a social dominance orientation that patriarchal norms will be related to myths about domestic violence. The belief in the “just world,” which is when someone thinks, basically, the world is a just place. People get what they deserve, and deserve what they get. And we don’t have to worry about oppression and differences in power. So we have, we have some of those abstract beliefs put in there, which can still be used in training to help people become aware of their values, their core beliefs and allow them to think and perhaps shift some of their more surface beliefs as a result. So all of this is designed to try to figure out what can we do better for training evaluators, in particular, but also other professionals?

OK, so those are the background kinds of variables that we’re looking at — beliefs, training, gender — and then of course the outcome; these, these negative outcomes that I mentioned already: that joint custody would be given or sole custody to an abuser, that mediation would be pushed, that there’s unsupervised or poor supervision, unsafe supervision.

OK, so this kinda lays out the hypotheses then; you can see many variables, many kinds of possible relationships. And I’ve put for you, in the handouts, these hypotheses in sentences. If you prefer not looking at maps, but, I mean people have a preference, right? When you’re getting directions, do you want to look at a map or do you want to get the directions written out for you? So here are the directions written out for you, the hypotheses, and you know there’s gender differences there, right? So who is it that likes maps and who likes written directions, you know, I think. In the discussion section, if you wanna know the answer, I’ll tell you then. OK, so I’ve laid out the hypotheses here. And I won’t take more time; I want to jump into methods.

What we have done so far is to complete two pilot surveys with a total of 62 evaluators. We used Web-based and mail-based administration. And we were able then to hone down and refine our measures, to improve on them because we also asked them at the end, “What do you think of this survey? Was it any good? What are your reactions? How could it be improved? What questions couldn’t you understand?” But we learned a lot. You know, evaluators don’t like responding to a little case vignette that we had. They said it would be unethical for me to put down a reaction because I would have to do the entire evaluation; you know, I cannot respond to your vignette. So we changed that. We said what hypotheses would you have, not what recommendations would you make? So we learned a lot through these pilots. And we’re about to launch the major survey.

We have measures of history of practice, practice experience with domestic cases, training, the, the scope of training, but also the modality — do you go to workshops or do you read articles? So. And then we have this vignette, which is at the end of your handouts, was modified from a journal article by Claire Dalton. And then we created various responses for them. You know, what’s the likelihood that you think the mother or the father are minimizing, are minimizing the abuse or exaggerating the abuse? What’s likelihood of future harm by either of the mother or the father? And then we have measures of these distal factors. We borrowed and stole items on beliefs about custody visitation and domestic violence from other sources, and then we created many of our own. And through this pilot, we found some very reliable subscales around these different themes.

So, the belief that there are false allegations of domestic violence that are extensive, that domestic violence has a severe impact on the children — that was another subscale — the friendly-parents standard that I mentioned, and then a number of myths, myths that for example, domestic violence ends at the separation, that abusers don’t undermine the other parent’s ability to parent, those kinds of things. So, I mean, the questionnaire, the first one we did was very long — I think 13 pages, 125 questions. And now we’re down to 80 questions. It’s much shorter, it takes about 25 minutes, 20, 25 minutes to complete. And we’re trying to hone it down even further.

So we’re gonna have a wealth of information here when we’re all, when we’re all done with this. So from the pilot survey, or two surveys combined together 60, 62 people. Most of them were in private practice; some worked directly with course. And we need to balance our sample more and, and go out to court settings, where there’s a lot of good training in many of those settings where family court personnel are doing a lot of the evaluations. This tended to be a group that had lots of experience, about half of them 20 years or more. There’s 60 percent men, an older sample. Many of them were Ph.D.s in psychology. And 20 percent had master’s degrees.

We also asked about their own, their own personal acquaintances regarding who, who they knew as a survivor. And so we asked about friends, coworkers, and here you see that about 20 percent of them said that their mother was a victim and survivor, and we’re gonna use that to figure out does that make them more sensitive or less sensitive in responding because previous research shows it can go either way, you know, with child welfare workers and, and other workers it can, it can go both ways, both ways. Forty percent had a friend who was a victim.

OK, here are some results then. Major question was “In your opinion, what percentage of mothers in child custody disputes make false allegations?” And then we asked the same thing about fathers. And this is in general then; this wasn’t first asking, “Of those who make allegations of domestic violence, what percentage are false?” So we’re gonna refine that a bit ’cause this is capturing the whole group — overall, what percentage of mothers do you think make false allegations of domestic violence? So the top one here is the mothers — and this is simply the distribution — so to interpret this, you see on the right-hand side, there were a couple people who thought that 50 percent and 60 percent of the mothers were making false allegations of domestic violence — quite a large grouping around, you know, the belief that 10 percent of them were making false allegations, 5 percent and so forth.

So that’s just a, a distribution across how many people the number of respondents who believe that 0 percent, 10 percent, 30, 50, 60 percent, etc., were making false allegations. OK? And then at the bottom, the question is how many of you believe that, you know, what is your belief about the percentage of fathers who are making false allegations? And there you don’t see it skewed as far on the right, and it’s clumping more around the 0 and 5 percent area. So it looks like in terms of gender of the parent, we’re seeing some effects here. And like I said, we have to refine this further, so we’re tightening all this down to domestic violence cases. But we may have what people have said all along in critiquing some of the theories about parent alienation, for example, that it, in the past it’s been gender, that it’s been more blaming the mothers and having less creditability in their stories. OK? So that might be coming through here. Very interesting.

Okay, then we did find, as we thought, that a belief that there’s false allegations about domestic violence also relates to belief that the stories about child abuse, sexual, physical abuse are being made up in fathers and mothers alike. When it came to child sexual abuse beliefs, those were tied together very closely. If, if an evaluator believed that mom was making up stories about child sexual abuse, they also tended to believe that a father would do the same. OK, and then what are the other relationships here? These beliefs about false allegations?

Well we found — I’m not putting any of the statistics in here; this is all just straight out statements for you — these were bi-variant correlations, so these were significant R-values coming through. Some were quite high, but they were all significant. So the belief in false allegations related to the belief in friendly-parents standard that the mother in the vignette would be likely to harm the son psychologically, that she was exaggerating the violence, that the father was not likely to harm the son psychologically. And when it came to outcomes their, their tendencies in the response to this vignette — what’s the likelihood that you would recommend various actions — the belief in false allegations of DV was related positively to their tendency to recommend joint legal and physical custody, sole physical custody to dad, mediation, couples counseling, no supervision of visits with the child — so unsupervised visits. So some of the concerns that we’ve had in starting the study are coming through. And then there was a negative relationship between false allegations, the belief in false allegations and the tendency to recommend sole physical custody to the mom and supervised visits. So as you’d expect, just the flip of the others.

One of the questions we asked, “How do you ask about domestic violence? Do you directly inquire about domestic violence?” Most of them did. And then we said, “What measures do you use to screen for domestic violence?” and then “What percentage of the time do you screen?” And what this graph shows is that almost 40 percent of them said they never do any formal screening; they don’t have any measure, any protocol that they use. And then a whole other group on the other end use such an instrument all of the time. So we’ve got quite a split here, and we’ll do a lot of other analysis to look at the differences here and how these line up.

So in the follow up question, one person said, “I use a clinicalized version of the conflict-tactics scale measured, about one month apart.” Some used the domestic violence inventory, the SARA — the Spouse Assault Risk Assessment. Quite a few of them used traditional psychological measures — the MMPI, the Rorschach. And one person said, “I find I never have to directly inquire about these problems. If they are present, the abused party always mentions them.” And that is why I think we need to be quite concerned. I mean, we found in many different settings — if you look at hospital settings, mental health settings — there’s a tremendous under detection of violence. And I think evaluators, with their good intentions to come in with a neutral view, don’t want to rock the boat, or they don’t wanna raise issues that aren’t there.

I’m not sure what’s happening here.

And there are some models of conducting evaluations that say, let’s base it on the allegations that come to us; let’s not base it on what we try to uncover. We’re only going to deal with what comes to us from the parties involved. So I hope that as we work on this research that we’re able to have some impact on that.

Regarding background factors, the sample sizes aren’t real large to detect differences here. We did find some gender differences that men are slightly more likely than women to believe that mothers make false allegations, that they’re gonna harm the son in the, in the vignette.

Oh, is this for me? Oh, OK.

That they … OK, we’re gonna wait for the larger sample to analyze knowing a victim personally as it relates to all these beliefs and then, very importantly of course, is how they acquire knowledge. Have they gone to workshops in the past? Have they read articles? Have they learned about post-separation violence, about the impact of violence on the children? We have all of those items in there that we’ll be analyzing.

In relation to core beliefs, as we hypothesized, two out of these three core beliefs were related to belief in false allegations, patriarchal norms, belief in just world. And then patriarchal beliefs also were directly related to some of the outcome measures — referring the mother but not the father for parent education, for example, psychological evaluation for the mom is needed. And then we’ve conducted 11 out of 24 interviews with survivors in four communities, four different states. So we’re gonna have state laws also that differ. California is one where they have a lot of training provided for judges, evaluators, standards that they have. And so we’re interviewing women who have lost custody or children ordered to unsafe supervision. We’re also gonna analyze documents that these women have from their evaluations — the judge’s orders, the court, the custody evaluation, other orders. In some, I mean, one woman had nine different documents, three different evaluators, a domestic violence assessment etc., etc., etc. So there’s a lot of work we’re gonna need to do there.

In terms of themes coming through, I’m not gonna take time to read from this one, but the focus that this survivor said needed to be on the emotional, on the psychological pain, as well as the physical. It’s not, it’s not enough just to focus on the scratches and the obvious injuries but also on the emotional pain that occurs. And then we’ve heard this before, this survivor points this out, but we’ve heard it also, that evaluators often focus on what happened during the relationship and forget to ask about what’s going on now, during the separation period. And this person brings it through that domestic violence, whether it’s past or present, needs to be considered.

We’re gonna … In these four communities, we’re gonna conduct a community analysis, interviewing key players, finding out from them a snap shot of what seems to work well and what doesn’t work well in their communities.

So then, in wrapping up, we certainly have limitations to these pilots as based on self report, and we are gonna supplement that with document reviews. We’ll have a total sample of 445, and we’re gonna expand beyond private practitioners. We have a lot of Web searches that we’ve done. And we’re also gonna approach family court to be able to also survey people that work in family court settings — I think that’s very important. And we’ve got a number of communities that we’ll be going to for that. So to summarize the, the survey results, it was surprising in this very small pilot how many of the hypotheses were affirmed that false allegations of DV were related to the friendly-parent standard, that, that’s related to the belief that mothers are likely to harm the son psychologically, the tendency for joint custody, sole physical custody, relationship with these distal factors —these very abstract ones — patriarchal beliefs, belief in a just world.

So overall, background and core beliefs seem to be related to the belief about false allegations, which in turn are related to a tendency to order joint custody or father sole custody. So we have a number of hypotheses that are affirmed, and with the larger sample, we’ll be able to do a lot more. In terms of which set of predictors, overall, are gonna be the most powerful, we can weigh them with each other, we can put them together additively to figure out, you know, is it patriarchal norms and gender together that is going to be the most powerful predictor? So we can look at all of these effects, direct, direct effects, indirect effects, etc., and have a lot more to tell.

So stay tuned. Bethany says maybe next year we can do a poster. But certainly e-mail me; I have my e-mail address if you want more information. And then stay tuned for the final report, which will be up on the Criminal Justice Reference Service Web site when we’re all done. So thank you very much for your attention. And we don’t have time for questions now, we’re gonna…

Backes: At the end.

Saunders: We’re gonna take questions at the end. So thank you very much.

[Applause.]

Chris O’Sullivan: I’m at a terrible disadvantage behind these podium, which were designed by men, I think, very tall men — sort of disappear back here.

The study that we’re doing is pretty complementary to what Dan is doing. We’ve got a very eclectic group here. Michael is a parent coordinator, clinical psychologist, and divorce researcher in, in Boston with very little domestic violence background, which he’s getting very quickly. Marjorie Fields is a, is a former family court and Supreme Court judge who left the bench because she wanted to become a lawyer in private practice advocating for families in which there was domestic violence in custody cases. And Kim Selcerhas been our savior; she’s the one who sort of instigated this study by saying we’re having a real problem with our, our cases in family court and with the evaluators. So that was sort of the basis for starting this. April is an custody evaluator in New York City who’s a consultant on the project. And then we have people from various agencies in New York City who have cases in family court who … these are mostly, they do, they represent victims of domestic violence, primarily women, in contested custody cases and only indigent clients, so they’re, they’re free legal services.

OK, this is, this is a, this is a really difficult area. I don’t know how judges stand it. I hope to hear from Judge Koch. How is a judge to know what’s going on in a family and how can you tell from what, what, how they present themselves in court who is a good parent? So it’s really an impossible task to begin with, and then you add to it a domestic violence allegation, and how do you, how do you know if that’s really going on? So they rely a lot on custody evaluators. And then what do the custody evaluators do is really the — oops — the question for this study.

And we’ve got two different contexts for these cases. The legal context puts the best interests of the child first, parental rights second, and then they have to factor in the impact. In New York State, it’s a factor, in some cases a presumption that a parent should not get custody if they’re perpetrating domestic violence. And then there’s the social clinical context of, you know, what happens to the child in these situations if the parents are fighting just to begin with. If there is domestic violence the custodial parent has to be safe in order to provide a good home for the child, and domestic violence has an impact on parenting as well.

So, we’ve got these two dynamics going on. The custody battles set up one kind of dynamics. In divorce there’s a lot of conflict. It’s a time when evaluators and judges might suspect that, that one party will make false allegations of domestic violence. There may be violence that is just due to the heightened emotions around the time of separation and fighting over custody. And then there’s the issue of whether one parent is trying to turn the children against the other parent.

And then we’ve got the dynamics of intimate partner violence, which may make the, the same actions look very different or the same scenario look very different. Maybe there’s a violence at the time of separation not because it’s, of heightened emotion, because, but because abusers escalate their violence when they feel they’re losing control, so the same behavior can look very different.

One of the things we looked at was evaluator’s perception of causes of domestic violence and whether that influences how they interpret the situation and what the risks are. And then drug and alcohol abuse is another factor that can influence the dangerousness of the situation, how the evaluator of the core perceives each parent. So, we have a huge list of research questions. We also have a huge data set. These are the questions we’re looking at, I’ll try to go through this fairly quickly. These are all the factors that might be considered, what evaluators look at: the impact on the child, domestic violence history, parenting, who they interviewed. Did they interview just the family? Or did they go outside to interview neighbors, teachers, family members on each side? How do they interview the parents and children? Together, separately? Did they interview the kids as a group? What did they ask them? What did they ask the kids? How did they go about it? Did they do it with children? Are they doing stories and pictures or are they just asking them outright, “Does your mother beat your father? Does your father beat your mother?” And do they use psychological tests?” I’m not going to go over that because our findings are very similar to Dan’s. They use the MMPI and the Rorschach; they don’t really rely on it very much. 

What way do they get to the different sources? There’s enormous records, criminal court records, family court records. Are they looking at it? Do they think it’s informative? Did they recommend a parenting plan? In New York they’re not supposed to, at least in the city. The judges are supposed to be making the decision; they’re just supposed to do a clinical portrait of the family. In fact, they do. If they’re instructed by the judge not to present a parenting plan, they’ll just make their conclusion so obvious with the way it should go. So this is not worked as a solution to putting it back on the judge. And they all recommend treatment. They are clinicians.

We’re looking at some of these same factors. Are they knowledgeable about domestic violence? Does their basic theoretical orientation influence the way they go about evaluating? What do they think about parental alienation? What do they think about the importance of maintaining a relationship with each parent no matter how lousy they are?

Oops, I skipped one.

So our method was we got 70 cases through these legal assistance agencies in which domestic violencewas alleged and there was a forensic evaluation. We got enormous case files, and we had staff of — we’re not allowed to see them as researchers, but we got staff of these agencies to go through these huge files and create a database with all of the factors in the case. So there might be divorce proceedings, what happened? There might be 10 family offense petitions in family court or Supreme Court. In New York, State  Supreme Court is divorce court basically. We have this big data set; 300 variables on each case. Then we got the redacted evaluation reports, which range from shortest is probably 20 pages, and they go up to 50 pages. So we have these huge stacks, and for each case, we got the evaluation report, we got the order pointing sort of a reverse order, the judge’s order pointing the forensic, because they might want them to look for certain factors. Investigate whether there is domestic violence, investigate whether there is parental alienation, interview multiple people, get all the records, or it might just say interview the parties, and keep it very simple. So we can’t judge the evaluator on what they did without looking at the order. And then we got a copy of the final order. And in addition, we’re interviewing some evaluators from these 70 cases and giving them a brief survey. We’re also looking at their CVs to look at their background and training.

With the interviews, we’re going to try to match it up to whether what they say they do looks like what they do. We have preliminary findings also; we have the kind of data, but, we’re beginning the analysis. The attorneys — this is a cognitive salience issue — the attorneys thought they had these cases happen all of the time, where there is a forensic evaluator and a domestic violence allegation. In fact, it’s quite a small percentage of their cases. We also found that this sample we got from these legal service agencies are a little bit bias to the positive because they tend to get the evaluator they want. So these horror cases that they have are the minority of our examples. There’s a little bit of a distortion. And basically what we know from the interviews and, the evaluators, there’s no standard. They all think they’re different. They don’t know what anybody else does. They all perceive their job differently. Although most of them, I think there’s just one exception, they think their job is to figure out if the allegations are true, and that’s really what they think they’re doing. One said, “I’m really a detective.” So they’re amassing the evidence through interviews, through record reviews, and then they really want to tell the judge what the custody and visitation order should look like. Basically we found that, just a preliminary review, that they all think they’re different, I do it differently from everybody else even if they do it the same. No matter what their beliefs are, they are all pretty conscientious when they get in there. They tend to end up looking pretty much alike. There was one man that said, “There was a domestic violence expert. I hate them. They make such a big deal out of this, a little slap what does it matter? That’s not domestic violence. Psychological abuse, not a big deal.” Yet when you look at his evaluations, he is pretty thorough and just as likely as one who says, “Oh, there is so much domestic violence, and I believe most of the allegations.”

They’re equally likely to find domestic violence, or not, in the cases that we look at that they did. So that’s a little bit reassuring. The biggest difference we’ve found so far is that some of them take a very clinical approach; they don’t look at any records. They just do interviews. They just do their clinical interviews and Rorschach test and protective tests, and they really think they can get at the truth that way, and they don’t need to look at any records; whereas, others just spend enormous amounts of hours going through every petition trying to look for an overall fact pattern, which is not a clinical psychologist’s job. So that’s the biggest difference.

I have a handout — probably not enough — with the statistics, and I want to just talk about a case to illustrate all of the issues. This case was very typical in a lot of ways, but it was atypical in the fact that there were three different custody evaluators on it. It just sort of shifted around, and they came up with different conclusions, so I wanted to show how their approach led them to different conclusions about what was going on in the family. Custody kept shifting back and forth depending on which evaluator held sway over the judge at that moment and that’s sort of a mystery too. Here’s the mother, this is kind of typical in a way — the part about her husband trying to kill the district attorney in a prior case is not typical, but this education class disparity between the father and mother is quite common. She had a learning disability, dropped out of school, got married and had a child. Her husband ended up in prison. She went to prison briefly as an accomplice and was on probation for five years. She met the father in this case, and he helped her win a custody battle with the father of her son who was in prison. And they had two children together. They never married. And then she began to say he was abusive and controlling. And he was quite educated, quite self aggrandizing, claimed all these heavy connections, like he worked in the Manhattan D.A.’s office, or he’d done this or done that. He had claimed he knew all the jazz greats because he had been a jazz musician. He described himself as a health nut, and it was quite extreme. He boiled water for five minutes before he drank any or cooked in it. But he also saw himself as helping this woman. He was going to get her through high school, get her through college, so that was part of his controlling, perfectionist personality. He was arrested for physical assault on the mother twice. The first time it was what we call “ACD” in New York. It’s basically if he follows these conditions from the court, the case will be dismissed. He was told to go to an anger management program, and if he went to the anger management program, the case would be dismissed.

But he never went; nobody followed up and the case was dismissed. But the mother got an order of protection, and she eventually signed an agreement with him saying that she wanted to reconcile, and she wouldn’t press charges against him. So they were back together, and then he was arrested for another assault; he pled guilty, and there don’t seem to be any penalties associated with that guilty plea except that she got another one-year order of protection. The family split up. He had to move out. She kept the apartment; she got a new boyfriend. He moved to the suburbs, got a house. She had custody; father had them on weekends; they had to go to a precinct to exchange the kids. The father took the kids to a therapist. He also, after this second arrest, he took them to a hospital to the emergency room, on the grounds that the mother was abusing them when she had them; she strangled the older son. She was beating the younger two girls. So he went to court. The mother went to court. Her attorney left because he didn’t think anything was going to happen that day, so she was unrepresented. He testified that he had hospital records showing that she was abusing the kids, in fact, the kids were seen by a doctor and a social worker, and they said nothing happened to these children. But he went up there and claimed it so the judge yanked the kids and put them with the father. The mother still had unsupervised visitation on weekends. This is sort of a mystery. So that was in November. December, ACS is the child protective services agency in New York City, and the Society for the Prevention of Cruelty to Children did investigations; they found no child abuse. They recommended returning the children to the mother. The guardian who represents the children in court recommended returning the kids to the mother. The father hired a forensic evaluator. The first therapist the father took the kids to I’m calling “Dr. A,” and the evaluator hired by the father I’m calling “Dr. B,” just to keep them in order.

He found child abuse and recommended the children remain with the father, so the judge said the kids are going to stay with the father. Then the mother hired a forensic evaluator, and she found no child abuse. Did lots of tests on the mother, found she was average intelligence, and found she was fine and recommended custody to go back to the mother. The judge ordered the kids to stay with the father, but increased her visitation. In March the court appointed an evaluator who produced a report in July. This evaluator did a really thorough review and found that the father had engineered this claim of abuse, said the kids had to go right back to the mother. They moved out to the suburbs. They had been at a different school. They had been with the father for nine months. She said the summer was a good time to put them back in their old school in the city with their mother. And she said the father had done all of these terrible things, but the kids were really attached to him, especially the son whose father was in prison. He had become very attached; he had a lot of issues and was very attached to this guy. So in the end, it took another year or two years. They finally settled with custody of the mother and the father with liberal visitation.

So, isn’t that scary? I put down a couple of reasons it’s scary, and if we had more time, I think there are about five reasons it’s scary, but these are my first two: How did all of these educated evaluators — three of them were clinical psychologists with Ph.D.s; one of them was a clinical social worker — how did they look at this family and come up with such different conclusions? And the other thing I thought was scary is, if the court really abused, the mother had strangled the son and was beating the girls, why is she having unsupervised visits all weekend? And then there are a few more. So how did it happen? These are the factors that I think influenced, and I’ll go through it with each one, these are the typical features. What’s typical about it is there are two stories and who to believe. Is the mother abused by the father and he’s alienating the kids against her or is she making this stuff up, and she’s really abusive and dangerous to the kids, and he’s the better parent? How do you know?

The therapist hired by the father saw all three kids together; they were 8, 6, and 4. So one of the criticisms of “Dr. D,” the court appointed evaluator, was that you don’t see the kids at these different developmental stages with different parents and different issues; you shouldn’t be treating them together. And this gave the kids the chance to provide this united front and talk about what the mother had done to them, and the father is paying the therapist, which is another issue. The evaluators we interviewed said they really believed the child protective services that they do, on the whole, good investigations. Yet that didn’t prevail in this case. They did pretty well, they interviewed the children, the mother, the neighbors, two of the neighbors were friends of the father and said, “You know he never abused her, but she did abuse the children.”

Five minutes? I thought you were going to tell me half way. Okay, rushing along.

The court-appointed evaluator did a really thorough investigation. By now the case file was this thick, looked at everything, looked at the documents. Dr. B, the evaluator hired by the father only interviewed the children. One of my conclusions, just to jump ahead a little bit, is relying on these clinical interviews can work very well. Some of these clinicians are amazing at teasing out the truth from the kids, and they’re very clever. They do things like they show photographs of the family that they got from the mother or the father; well this doesn’t look like what you are describing to me. But others are terrible. They just ask outright, and they get whatever the parent has told them, and they don’t seem to be suspicious when the kid is using language that isn’t really appropriate for their age, so obviously they’re rehearsed. So on the whole, I think it looks better if they really do the investigation even though the judges say they’re not supposed to. There are all of these documents available. Here is what they actually look at. The majority are not really looking at these records, which is a problem. How did they determine the truth, consistency, if they can do a good interview with the kids?

Timing can influence whether they think it’s false. “I can’t do this” — what they look for to see if it’s dangerous. Parental alienation is so controversial, and I came into this with my own set of, “We don’t use that language, this is a myth —” There’s no way around it. It’s going on in these cases all the time. Some of the kids are coached to say things like these three children, “Mom strangled me.” In the end, when the final evaluator did the interviews, the kids said different things each time — she saw them three or four times — each time the story was different. “Mom lies, dad lies. He hits us, she hits us.” So it went back and forth, and it really was clear there wasn’t much going on there.

They were very confident in their conclusions. This is a little disturbing because they really can be wrong. And there’s a much more egregious case, where the judge followed the evaluator, and the evaluator was clearly wrong.

OK, the evaluator is the key person. I saw it a few times when the evaluator says, “There’s no domestic violence here.” And the judge says, “There’s a medical record; I’m giving custody to the mother. I’m going to put protections in place.”

The evaluators complain that the judges don’t read their reports. They really need to read them but read them skeptically and look at the methodology. OK, I’ve already said all this — sorry, three minutes. I’m good; I’m on my last few slides. I think the judges should specify the scope of the evaluation and not limit it to just do interviews, a single interview especially, but sometimes multiple is just not enough.

Some of these evaluators know nothing about domestic violence. There was a case where a psychiatrist interviewed all three parties and said the mother’s allegations were bizarre — they were actually fairly typical. She asked the father. He said, “No, this never happened.” And she said, “Well, there it is.” So she gave custody to the father, and the mother had no visitation because she thought she was fabricating the fact that the father kept her captive and that the father looked at pornography and was sexually abusive to her. And she said, “This doesn’t happen” — the psychiatrist said. So read the reports and question those conclusions.

We still don’t know what’s best for kids. In this sample case I was talking about, the father had alienated the kids from the mother, gotten them to make these accusations, nobody knew what to do about that, because the kids really needed him. And they were very attached to him. So they sort of had no way to deal with that. They were going to go on spending a lot of time with him even though he was going to continue to try and turn the kids against the mother. And we don’t know what to do, so we need further research in these areas. And really, there should be more follow-up; everybody says. They need to be brought back to court, follow-up evaluations. Is it working? And what’s going on? What are the developments, and can we now see the picture better now that we’re like a year away, and is it safe for the kids?

I had quantitative data that I put into the handout, but I think Judge Koch is going to talk about that.

[Applause.]

Dale Koch: My job is to try put a little judicial perspective on the research and maybe what questions it raises for judges and judicial education, so my thoughts are going to be a little bit random in terms of the research that is being done at this point, partly because both these projects still have some work to do before they can really reach all of their conclusions. What they’re doing at this point is raising questions for us and not necessarily providing all of the answers. One of the thoughts from Dr. O’Sullivan’s research project at this point. One of her first assumptions that’s contained in the project is that custody evaluations have a great influence on judicial decision-making. And, that’s really true, but it does depend, and it should depend, at least on the quality of the evaluator and the quality of the evaluation.

It also raises questions in my mind, andthe case example that was provided here raised some of these questions, about whether we should be looking to having dedicated family court benches. In other words, whether we need to have judges who are really trained on these issues and just hear domestic relations cases or at least that’s the primary part of the work that they do. Whether we should be looking at the model of “one judge, one family” model so that in this situation that Dr. O’Sullivan is talking about, whether these cases are always coming back in front of the same judicial officer or coming in front of different judicial officers. It raises questions by judicial education and the need for the education on domestic violence issues, on child development issues, on parental alienation issues, on child abuse issues. It also raises some questions in my mind about the appropriate roles and expectations of the evaluators and the decision makers. I think Dr. O’Sullivan’s comment about the fact that the expectations for the evaluator should be made very clear.

The concept that we are going to ask somebody that’s an expert — at least we’re assuming they’re an expert — to go out and do an evaluation and not come to us with a recommendation in regard to that evaluation, that somehow just because we got elected as a judge or appointed as a judge that we’re smarter than the person doing the evaluation doesn’t make a whole lot of sense to me. So I would agree with her initial assessment that we need to be providing better direction and then asking for recommendations rather than just partial evaluations. But, if we’re doing that, the evaluation has to be worth something to us and the other point raised — and I am probably going to touch on it a couple of times — is that unless the evaluator is looking at collateral sources of information, that’s probably not a very reliable evaluation for us.

I guess I would contrast this, what the judge’s role is in a family court context versus some other context we’re in. Judges in a family court context have a tendency to view their role more traditionally, in terms of being very passive. We receive the information that comes in front of us. We don’t do much ourselves in terms of getting information, whereas in the context of a civil protection order for instance, particularly in the process of issuing a civil protection order, judges at this point are much more active. They’re looking at other court files that are in their court room. They’re looking at, in our case an OJIN printout, which tells us all the different filings that have been made in that file. We don’t do that in the family court context. We perceive ourselves as being back in this more traditional role so it’s an interesting dichotomy, and we rely upon others then to provide us that information, including the attorneys and the evaluators. And that I found interesting.

Going to the research done by Dr. O’Sullivan, in terms of what the evaluators were doing, in the cases that she was looking at and in only about 1 out of 2 cases, only about half were they looking if there’d been a CPS investigation, were they even looking at the CPS investigation. In only 1 out of 3 cases, if there’s a police complaint, were they looking at the police reports and that underlying information.

Now it’s not that because a police complaint was made that it’s necessarily true. It is an allegation at that point, but it is something that should be raising questions that need to be followed up on and looked at further. And then in only 1 out of 6 cases were they looking at the mother’s medical records. When those records and these — and when I’m saying 1 out of 6, these are situations where the records were in the attorney’s file, so they’re available to look at. And in only 1 out of 6 cases were they actually looking at them. So I thought that that was very interesting in terms of what wasn’t happening, and as a result I think it obviously has a very negative impact on the quality of the evaluation that’s being done. Because how can the judge or how can anyone evaluate the context of what’s going on in the relationship without having the full information? The concept that I find troubling from a judge’s perspective is this concept that somebody can just by talking to somebody and looking them in the eye, figure out if they’re telling you the truth or not.

That’s what evaluators are oftentimes doing, and that’s what theoretically we’re doing up on the bench. I could not look somebody in the eye when they’re up on the stand and tell you if they’re telling me the truth or not. Last case I did Friday afternoon before I got on the plane this weekend, two people came in, no children and no allegations of violence. The issue in question, because there’s a temporary support, who’s going to pay the bills, is did mother, two months before have a shoe box in her closet that had $30,000 in cash in it? He said she did, and she said she didn’t.

Well, to tell you the truth, and I told them, “I don’t have a clue which one of you is telling me the truth, and I don’t have any way to figure that out. I know that you both lied to me about the income situation because it’s totally inconsistent with what’s on your tax returns, or you lied to the government, one or the other, but I can’t find that truth.” And in that situation I didn’t have to make that decision, there were other basis on which I could make my decision about what the support issue is going to be. But in the context if they were coming in making an allegation regarding domestic violence, just talking to them there, I wasn’t going to make that decision, but there may have been a lot of collateral information out there that would help me make that decision appropriately.

The role of the attorneys, where there are attorneys, just can’t be underestimated. The best case I ever had an attorney try in front of me, regarding a custody situation, where there’s an evaluation, was a situation where there were allegations among other things of domestic violence — among other things — in the relationship. And the two parties had agreed on somebody to do a custody evaluation through their attorneys. That evaluation was done, and the evaluation came back and recommended custody to the father. The mother wasn’t satisfied with that, and she decided to change attorneys — a very good choice for her at that point. And the rule that we have in our court is we will not order a second evaluation. If the parties have stipulated to an evaluation and we’ve signed the order proving that, we will not order a second evaluation. So that attorney did what the evaluator should have done in the first place. The attorney went and looked at all of the collateral sources that could have confirmed or proven not true the assumptions that the evaluator made when they reached the conclusions for the report.

For instance, and in relation to an instance of domestic violence, where the evaluator concluded, because there had been no complaint filed, that it wasn’t worth looking at, that it must not have been true. And therefore, that’s part of the pattern of the mother making up stuff. The attorney subpoenaed him to court, the police officer who took that report and the eye witness to the event. And those people came in and testified, and it was very clear that there was the significant event of domestic violence that occurred. If the evaluator had even taken a look at the police report, which they hadn’t chosen to do because there’d been no complaint filed, probably would have at least raised some questions in their minds. So, I think it’s extremely important that the attorneys don’t just accept the evaluator’s report either in terms of what comes in front of the court.

Now, just a couple of other points, and then we’ll open this up for questions. It’s kind of — the questions raised to me, first from Dr. Saunders’ study, project is could these same hypotheses be applied to evaluation of judges? In other words, if you’re assuming that evaluators have these predispositions and that their decision-making might be based upon gender, personal family history, training, is that true of judicial officers as well who are making those decisions? And the answer as our Supreme Court nominee indicated in some of her remarks is, “You know how I grew up probably does make a difference in terms of how I view life in general and the lens in which I view cases that come in front of me in a court room.”

Now, it’s probably a little more delicate to do that kind of examination of judicial decision-making than for evaluators, and partly that happens to us on a daily basis anyway because the decision-making the judges make is much more visible than other decision-making because it occurs in an open court room; it’s a reported proceeding, and everybody can come in there, and as you all know, judges have been criticized from both sides about how they view domestic violence issues. But yet it’s true that the lens that judges view cases through does affect that decision-making process. It has to. The decision-making that I do now is a lot different than what I was doing 15 years ago. My gender hasn’t changed, my background hasn’t changed, but my education’s changed significantly, particularly on domestic violence issues.

The other context in which we actually take a look at judicial decision-making, and I touched up on this earlier is what court room we’re sitting in. In other words what hat we’re wearing. It’s interesting in a judicial institute that we do for judges on domestic violence issues, we do an exercise where we give the judges three different scenarios. And in one scenario, they’re sitting as a judge in a dependency court in a child abuse court. One scenario, they’re sitting in child protection court. And the other, they’re sitting in a family court. And we ask them to make decisions. They’re given exactly the same scenario, but it’s interesting. Their decision-making is different because they’re viewing it from a little different context.

The other thing that I don’t think we can lose sight of here in this discussion, we’re talking about evaluators; we’re talking about cases with attorneys. The majority of the cases that come in front of us, there’s never an evaluation done. The majority of the cases that come in front of the courts, one or both of the parties are unrepresented. So, what we need to make sure we do with the research, I think, is it needs to go out beyond the events, evaluators and the researchers and the lawyers. It does definitely need to get to the bench because unfortunately judges are called upon to make these decisions all the time without proper evaluations.

So, I guess my question is where do we go from here? My question last night to Dan was, “OK, we’ve got this great research, so what?” But there are ways that this can use us, help us to make better evaluations to look at the role of attorneys in this process, to look at what weight we should give to evaluations, and to help us take a look at, properly take a look at the context of domestic violence in relation to the decision-making we’re making. So, thank you very much.

[Applause.]