Bess v. State ( 1988 )

Deen, Presiding Judge,

concurring dubitante.

A brief statement of the facts is appropriate most of the time even in cases of child abuse, in order to gain a real understanding of what occurred in the case. Appellant was the boyfriend of the victim’s mother. The latter had three other small children. The victim was eight years of age. She was found competent by the court, testified, and was cross-examined. The mother testified that her daughter admitted to her in front of defendant that he “messed” with her and that he did not deny it. She said defendant told Detective Conner that he “didn’t know what he could have did because he was doing, doing — when he was on that stuff.” (Emphasis supplied.)

Anatomical drawings and explicit testimony were given, detailing forced acts of his placing his private parts, mouth, and tongue inside the body of the victim. Some argue and articulate that recital of even minimal facts in heinous drug, porn, obscenity, and sexual cases involving abuse of small children should not ever be necessary in deciding these types of delicate, emotional cases. One judge on our court recently opined: “While I find appellant’s conduct reprehensible, I share Justice Smith’s view, set forth in a dissenting opinion as follows: ‘As a result of this being such an emotion-filled area of the law at this time, we are ignoring the time-honored rules of evidence and are creating new rules for child abuse and molestation cases in order to obtain convictions of those who are perceived guilty of those heinous crimes. . . . Those accused of other crimes should not be provided greater evidentiary protection than those accused of child molestation.’ State v. Butler, 256 Ga. 448, 454-455 (349 SE2d 684) (1986).” Ward v. State, 186 Ga. App. 503, 507 (368 SE2d 139) (1988).

It is the view of this writer that many times those accused of child abuse and molestation are actually provided greater evidentiary protection than those accused of other crimes, i.e., burglary of a bank and embezzlement of an insurance company. Usually those convicted of the latter type crimes are faced publicly with detailed recital of the facts of their misdeeds in written opinions, and further the opinions are usually 'always reported for the bench, bar, and public to see and know what they have done to the bank and insurance company. In the former cases, on many occasions, probably in deference to the youthful victim, the facts and acts of defendants are swept under the rug or are scantily mentioned, if at all; furthermore, many times the opinions are unreported under our Rule 37 (b), a type of further censorship of facts, so that no one really knows what occurred to the innocent, abused children, as shown by the trial transcript. “[M]ost of our [obscenity] decisions . . . have been given without opinion and have thus failed to furnish . . . guidance.” Jacobellis v. Ohio, 378 U. S. 184, 200 (84 SC 1676, 12 LE2d 793) (1964). See Motes v. State (Case No. 75795, unpublished opinion, decided April 28, 1988) and many other similar type cases unreported under Rule 37 (b). One might inquire, “How many ways can sodomy be committed?”; or, “How many ways can one rob a bank?” Should facts in the former be consistently omitted and unreported, while those in the latter are always repeated and reported?

Our court cannot treat the victims in emotion-filled areas of the law, such as child abuse, differently from victims in other areas of criminal law. Likewise, all criminal defendants coming before this court must be given the same protection, not less, not greater, but all must be fed substantially out of the same spoon. We must not let it be said that “the judicial system has been complicitous in the further harm to the child.” Dixon v. Dixon, 183 Ga. App. 756, 759 (360 SE2d 8) (1987). To keep quiet as to the facts, acts and attacks (whether involving sex, drugs, pornography) is precisely that to which the actor or attacker ardently aspires.

Decided May 4, 1988 Rehearing denied May 18, 1988 Michael S. Bennett, C. Richard Williams, Jr., for appellant. H. Lamar Cole, District Attorney, Robert T. Gilchrist, David Miller, Stephen J. Pearsall, Assistant District Attorneys, for appellee.