Wendy Murphy: and Justice for Some: Spare the Rod – Spoil the Child Rapist

By Wendy Murphy
The Patriot Ledger

July 7, 2008

QUINCY —In a recent debate over the propriety of mandatory punishments for child rapists, State Representative and criminal defense attorney James Fagan said such punishments would prevent plea-bargaining and thus require children to testify.

Fagan said this would then obligate him to “tear [a 6-year-old victim] apart” on the stand.

He said his cross-examination would “make sure that the rest of [the victim’s] life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

Reasonable people want to know why Fagan made such a vicious threat only against witnesses to child rape? Would he be less aggressive on cross-examination of a key witness in a bank robbery case? Murder carries a punishment of mandatory life behind bars. Why no similar threats against eyewitnesses to murder?

Fagan said his comments were meant as hyperbole. Who cares. His deranged rant threatens to undermine the willingness of victimized children and their parents to cooperate with the criminal justice system.

Like all crime victims, children have a right to seek redress and the legal system has an obligation to provide a fair forum within which guilt may be adjudicated. It bears stating the obvious that the courtroom should not be a place where innocent children are subjected to gratuitous harm that “ruins” their lives.

This doesn’t mean cross-examination must be gentle. Defense attorneys have a duty to vigorously defend their clients; which means effective cross-examination of all witnesses, including children. But there is no right or need to render a child incapable of eating or sleeping – for years – in the name of due process.

Most defense lawyers understand this, which is why Fagan’s threats have been harshly criticized by even the most notorious criminal attorneys. They know that being needlessly brutal to a child is not only inappropriate, it’s a strategically dumb thing to do as it will offend the jury and “ruin” the defendant’s chances of being judged fairly.

Although testifying can be stressful, studies show that kids who take the stand do better in the long run than children who are “protected from the system.” This is because when children age into maturity and understand complex ideas like justice, they look back on their experience with pride and feel comforted by the idea that important people believed them, that they had a voice and that the abuse they suffered was taken seriously.

The children who don’t testify don’t do so well as adults. On average they describe feeling unsettled and anxious because they weren’t believed or taken seriously.

And in cases where the perpetrator offends again, which is exceedingly common, they feel guilty that they weren’t strong enough to take the stand.

Not all children should be forced to testify, but it’s important that victims and their parents appreciate the benefits of participating in criminal trials. It’s the abuse – and the silence – that threatens to “ruin” a child. Comparatively speaking, testifying is easy.

And let’s be honest – everyone knows kids are very good witnesses. Not because their testimony is perfect. It never is. In fact, it’s the nature of children’s cognitive limitations that makes them so riveting on the stand. Simply put, they’re not very good at lying, which is why perpetrators are far more frightened of children taking the stand than children are afraid to testify.

It’s time to stop giving out lenient punishments in the name of “protecting” kids from trial. Not only are children tougher than we think – they deserve our respect and they have a right to be heard.

Ironically, Fagan’s threats have helped shine a light on the myth that all children are too fragile to take the stand. This idea has undermined prevention efforts because predators aren’t afraid to get caught. They know they can count on adults making children feel afraid to testify – just as they can count on prosecutors to indulge that fear and dismiss or discount the charges.

The best defense against Fagan’s terroristic tactics is to have children and their parents rise up in opposition – and not only report abuse in unprecedented numbers but insist on the right to testify!

Who knows, five years from now when sex crimes are down because predators get the message that we no longer give away the store in the name of “saving the child” from the trauma of testifying, we may just have to send Mr. Fagan a thank-you note.

Wendy Murphy is a leading victims rights advocate and nationally recognized television legal analyst. She is an adjunct professor at New England School of Law and radio talk show host. She can be reached at


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