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Penal Law, § 130.65.

The CSS filed the instant proceeding on 9 April 1991 alleging that respondent LM sexually abused his sons, MM and DM, ages 10 and 8, respectively, by fondling their genitals and buttocks in violation of Penal Law, § 130.65. CSS also alleges that the children are psychologically and emotionally impaired as a result of the pattern of domestic violence witnessed in the parental household. The petitioner additionally asserts a claim of educational neglect claiming that the children are excessively absent and do not attend school regularly.

The court finds that the allegations of sexual abuse have not been proven by the quantum of proof necessary under Article 10. In order to sustain a finding of sexual abuse, this court must make a threshold finding that the father’s acts were done for the purpose of sexual
gratification. Because sexual abuse is predicated upon the criminal sex offenses defined in the Penal Law, evidence of “intent” is an essential element under Article 10 and as enunciated in Matter of Ruth L.

Dr. AM, the Commissioner’s only witness on the sexual abuse charge, was the validator chosen to access the children’s allegations of sexual abuse. She has been qualified as an expert. She testified that MM and DM both confirmed several instances over a period of two years where their father had fondled their genitals both over and under their clothing and had squeezed and rubbed their buttocks when sitting or reclining on the sofa. The incidents usually occurred when the mother was out of the house.

The children could not specify the number of times such touching occurred or the amount of time that elapsed between such touching. However, the boys did relate that the touching was usually brief and that long periods of time would pass between such instances. According to Dr. AM, the children denied any other form of sex contact such as having to touch their father’s genitals, or digital penetration.

The father concedes to the acts but strenuously denies that the touching was done for sexual gratification. He related to Dr. AM that he touched the boys and pulled or grabbed their genitals and buttocks when he hugged them or played with them, and it was his way of being affectionate with his sons. He also related to Dr. AM that during that period of time he sometimes showered with the boys. However, no allegations of improper touching while in the shower have been made against the father.

Testifying on his own behalf, the father admitted that he grabbed the boys’ genitals and buttocks during times he wrestled with them on the floor or on the sofa. He stated that as a child, he had been similarly touched on the buttocks and had not considered it wrong but now acknowledged that he has now come to realize that such touching transgresses proper parental boundaries.

The court finds unpersuasive that the actions described present an unequivocal and unambiguous showing of sexual abuse. It is certainly not beyond the bounds of reasonableness to find that the father’s actions were misguided attempts to demonstrate affection, or that his behavior demonstrates a lack of understanding of child development.
The Commissioner’s own witness, Dr. AM, could not confirm that the acts described by the children were done for sexual gratification. The court is not disposed to adjudge the touching described as sexual abuse. Normal interplay between parent and child, particularly in the early stages of a child’s development often involve acts of touching, squeezing, patting, and pinching various parts of a child’s body including buttocks and at times genitalia. The difference is that what might be socially acceptable when a child is an infant or toddler becomes less so as the child grows older and becomes more aware of himself as a separate human being. Thus, a parent’s respect for the child’s right to the privacy of his person should increase as the child grows and matures.

Some parents however, lack this understanding in child development and persist in dealing with an older child with the same kind of intrusive handling as when the child was an infant.
The court finds that this is a grey area in the parent/child relationship where claims of sexual abuse must be seriously examined, and extreme caution exercised, lest normal interaction be reported as sexual abuse. The damage that can occur to the parent/child relationship from an erroneous finding can be enormous and long lasting.

The court has given careful consideration to the possibility that the children may have been influenced or coached by the mother. Of critical importance here is the mother’s psychological condition during the past several years. Mrs. M.’s marked psychiatric disturbance raises serious and material issues as to her direct influence and control over the children both before and after Dr. AM’s interview. Each of the witnesses confirmed that Mrs. M. has, over the past five years, exhibited illogical thinking and often has been incoherent. The mother acknowledged that she showed the children video tapes on preventing sexual abuse. Although this fact does not indicate prompting or coaching, it is the cumulative circumstances which point in that direction.

It is to be considered that at first, the children made these allegations to a CWA caseworker only after the father had initiated a 2221 report of suspected child abuse and/or neglect against the mother. In cases of sexual abuse, children usually make initial revelations of sexual abuse to a trusted parent or relative, or friend not to a stranger. Since the mother instructed the children on preventing sex abuse long before CWA became involved with the family, and while the respondents were living together, the court finds it unlikely and improbable that the children first revealed these incidents to a caseworker, rather than to respondent mother. The court notes that this raises the possibility that revelations made to the caseworker were prompted by the mother’s statements to the children.

To be continued…..

Kings County Domestic Violence Attorneys, Kings County Sexual Abuse Attorneys and Stephen Bilkis & Associates are experts in these kinds of proceedings. If you have queries regarding the case mentioned above, please feel free to contact our firm through our toll free number or you may visit us at our office near you.

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