One in Ten

Centering Survivors in the Law, Criminal Justice Crystal Ball, Part 3

December 10, 2020 National Children's Alliance / Nelson Bunn Season 2 Episode 21
One in Ten
Centering Survivors in the Law, Criminal Justice Crystal Ball, Part 3
Show Notes Transcript Chapter Markers

In our season-ending episode, we look at the wave of statute of limitation (SOL) reform that has swept our country, giving survivors of child sexual abuse—who may take years to fully process and disclose what happened to them—more time to seek justice. But the reform also poses challenges for prosecutors, law enforcement officers, and professionals who work with victims of child abuse. How do we properly maintain evidence in perpetuity? What resources do we need to really store this evidence—both physical and digital—and support survivors throughout their lifetimes? In this conversation with Nelson Bunn, executive director of the National District Attorneys Association, we discuss how to meet the practical demands of retaining evidence and prosecuting older cases while keeping survivors centered at the heart of our work and at the heart of reform.

This is the last episode of Season 2 for One in Ten. We’ll be back in early January with a fascinating conversation about a different approach to preventing child sexual abuse.

Topics in this episode:

  • Benefits and challenges of SOL reform (2:04)
  • Preserving evidence (7:37)
  • Digital evidence (11:31)
  • Prosecuting the backlog (15:29)
  • Advice for CACs (18:38)
  • Learn more about NCA and CACs (22:24)

Links:

Nelson Bunn, executive director, National District Attorneys Association (NDAA)

childusa.org/law has information on child protection laws across the United States

Justice Served Act of 2018 amended the DNA Analysis Backlog Elimination Act of 2000 to add, as a purpose area under the Debbie Smith DNA Backlog Grant Program, increasing the capacity of prosecutors to address the backlog of violent crime cases involving suspects identified through DNA evidence. Debbie Smith is a survivor of sexual assault. The DNA evidence from her forensic exam afterward went unanalyzed for more than five years.

Listen to the rest of the Criminal Justice Crystal Ball Series:

You may also enjoy “Radically Vulnerable: Achieving Justice for Survivors” with Prof. Marci Hamilton (aired 9/30/2019)

For more information about National Children’s Alliance and the work of Children’s Advocacy Centers, visit our website at nationalchildrensalliance.org. And join us on Facebook at One in Ten podcast or email us at [email protected].

Support the show (https://www.nationalchildrensalliance.org/donate-now/)

Teresa Huizar: Hi, I’m Teresa Huizar, your host for One in Ten. In this week’s episode, part 3 of Criminal Justice Crystal Ball, “Centering Survivors in the Law,” I speak with Nelson Bunn, executive director of the National District Attorneys Association. Many of us have been excited about statute of limitations reform. For those of you who may not know what that is, in the past in this country—and still in some states—survivors had a hard time seeking justice. If they waited years to disclose, what would happen is that their evidence would often be lost, misplaced, degrade, be destroyed, or the law itself prevented them from seeking justice by setting an arbitrary statute of limitation on how long they had to report their abuse.

In the wake of Sandusky and the Catholic Church’s child sexual abuse scandals, many of those laws have now been reformed to both open up windows from past events where people could come forward to disclose their abuse and seek justice, or eliminating statute of limitations altogether or greatly extending them. These are exciting times for survivors, who may never have had justice before but can now seek it.

But while there are many strengths and many important aspects to the statute of limitations reform work, it’s not all roses. There are also challenges along the way, and questions that have to be answered. Like: How do we properly maintain evidence in perpetuity? What resources are needed to really store this evidence well and support survivors throughout their lifetimes? And how to keep survivors at the heart of this work and at the heart of our reform?

 

Teresa Huizar: So Nelson, tell us how you came to this work. 

Nelson Bunn: I've been at NDAA for about six years now. Three as the executive director and was previously the government affairs director for the association. Prior to that, I had been at a lobbying firm where we had a number of law-enforcement-related clients.

And from there I really got some of my initial experience working with sheriffs, working with fusion centers and intelligence sharing and wasn't really looking for a job when I came to NDAA, but had a lunch that was set up by a colleague that turned into a job offer. And then from there, when my predecessor departed the association back in 2017, I decided to throw my name in the hat.

I'm the first non-attorney to run the association and  really come from a policy background. So it's been a very exciting and busy journey over my six years at the association. But I'm happy to say that things are going really well and just glad to be in the position I'm in. 

Teresa Huizar: Well, speaking of policy, I'm really interested to talk to you today about statute of limitations reform.

I think you know that in sexual abuse cases, one of the key issues over time has been, it's not at all uncommon that kids may wait days, months, years to disclose their abuse. And in the past, both civilly and criminally, there were statute of limitations beyond which if the child essentially exceeded those, there was not going to be any justice for them either criminally or civilly. And then I would say starting after the Catholic Church abuse scandals 20 years ago, and then going through the Jerry Sandusky scandals after that, but lots of institutional abuse cases that came up that really made, I think, legislatures around the country rethink the issue about: What do you do with someone who comes forward—and in some cases, hundreds of people coming forward as adults—and disclosing abuse that happened to them as children and, both in terms of how we hold those offenders accountable and how we seek justice for those victims. Now that we've had this wave of legislation—over the past decade or two more than 30 states have done statute of limitations reform; others are in the process of that right now—what have you seen overall and in your association of prosecutors relating to both the benefits of that legislative reform effort going on in many states, but also any challenges that have arisen as a part of that?

Nelson Bunn: Sure. And I think you're right. We have seen quite a change over the years in terms of how statutes of limitation are viewed. As you mentioned, you know, 30 states that have undertaken reform and others that are looking at it. We both internally and externally at NDAA have been talking about this issue from a policy perspective, but also those technical issues that may come up for prosecutors when they do have victims that come forward so many years later.

One thing that we have really emphasized when it comes to states or localities looking to address this issue is that, like many things there's not a one-size-fits-all approach for every situation. And as states have looked to implement policies at the state level or requiring specific techniques for keeping forensic interviews or other evidence, it's been really interesting to see how those have been, sort of the needle has been threaded in those states, and really making sure that for prosecutors we're keeping that ability of the local jurisdiction to make decisions on how best to handle those situations.

Certainly there—from a justice perspective—that a broader allowability, so to speak, in order for victims to come forward so many years later, eliminating a statute of limitations or reforming it in many ways provides for a greater level of justice for victims of crime. Each individual that has gone through such a horrific situation—they have each person's individual and how they process and how they are able to cope with a situation. And so it's not surprising that many will come forward later. Maybe they've had a pivotal change in their life that allows them to be more comfortable coming forward. So justice is better served in the long run when you're able to come forward, regardless of the timeframe.

In terms of some potential setbacks or drawbacks or downsides to it, we see this with cold cases as well. Some of these cases are so old that oftentimes, expert witnesses aren't available. It may be just the victim, him- or herself that is the sort of key witness for a given case. You know, these child sex abuse cases, when it's so many years later, they're relying on live testimony from the victim. There may be a medical report still. There may be some other evidence that could come into play. But other expert witnesses may not be around. Changes occur. Investigators that may be involved are no longer around. Prosecutors that may have been involved at some point are no longer around.

So, from an evidentiary standpoint, sometimes it becomes a little more limited down the road. And you're reliant on a given individual, which can be challenging. 

Teresa Huizar: Speaking to that, you know, you were talking about evidence. And one of the things that we've been thinking about in our world too, is, the way in which evidence is preserved long-term. And I think in many cases, and for many years, aside from murder, where it might've been preserved almost indefinitely, prosecutor's offices, law enforcement would have had policies about what to do with that evidence and how to address it after certain periods of time.

I'm just wondering, where there's been statute of limitations reform, and particular places where they've removed a statute of limitation altogether when it comes to child sexual abuse, what are prosecutors’ offices doing to really address the fact that evidence is going to need to be preserved much longer than maybe anyone had current systems to preserve it?

Nelson Bunn: Absolutely. And that's a great question. And when I was getting ready for this podcast today, what struck me is the similarities with body camera evidence, for example, and storage over time of body camera footage.

Prosecutor's offices first and foremost—you mentioned that offices will have policies. While it may seem like an obvious answer that the first thing you need to say is to have a policy in place, and not something that is sort of ad hoc necessarily. I think that's just helpful, whether it be an internal policy that you develop with prosecutors in your office, but also with external stakeholders. If they're investigators with your law enforcement partners—maybe it is a coordination with your local child advocacy center or other experts in the field that may be of help—having some kind of policy in place, I think is just really helpful for preservation of evidence as a whole.

When it comes to these particular situations: Yes, as evidence may have to be stored sort of indefinitely or for longer periods of time, that becomes an issue of capacity and infrastructure for storage, whether it be technology, whether it be, you know, the old-school sort of evidence locker room, if you will. And so that's really problematic to think about the capacity issue and the resources, quite frankly.

You know, you don't want to say that storing information is just indefinitely expensive. It is, but that's not really serving justice either. So my answer would be, you know, working with other stakeholders, looking for grant opportunities, and really working with policymakers—going back to the original policy discussion—working with state, local, or federal policymakers to ensure that we're providing the necessary resources to prosecutors and law enforcement partners and other community partners where appropriate so that they have the infrastructure and the technical capability and capacity as a whole—as a prosecutor's office—to be able to contain and keep information and be able to use it down the road. I think that's just really paramount—and tricky. There are certainly issues that have come up in the body camera space, about costs, about companies that may be storing information. There are a lot of third-party vendors out there and, you know, what do you do if a company that has some kind of technology platform for any kind of digital evidence that's associated with it? You know, what do you do if that company is no longer in business down the road and you have a victim that comes forward?

So there, those kinds of things that have to be considered. It is certainly not an impossibility. And I think in the interest of justice, all of us want to make sure that we are serving victims and making sure that justice is sought in communities. But there certainly are some capacity and resource issues that inevitably have to be part of that discussion.

Teresa Huizar: I'm so glad you started talking about digital evidence, because I think when people first think about the evidence that might crop up in these cases, you know, they're thinking like something they've seen on CSI. Right?

Nelson Bunn: Sure.

Teresa Huizar: They're thinking DNA. They're thinking about other types of medical evidence or other types of physical evidence, but they're not necessarily thinking about the digital evidence that exists and any recordings that exist and what happens with them.

And, we have a lot of concern too, about how those things might be properly maintained. There's kind of the question about, you know, what we do going forward? Right. What we do to set up systems that are designed from the outset to preserve those recordings long-term/ But then there's the question about what do you do with the—you know, if you're in a Children's Advocacy Center, for example—thousands of thousands and thousands of recordings that may have happened with technology that's no longer even in use. So for example, you know, many CAC have maintained their recordings from the time that folks used VHS

Nelson Bunn: Sure.

Teresa Huizar: And so they may have an entire room of VHS recordings. But those kinds of things degrade over time. So what should policymakers—kind of back to that point you were making about that—what should they be thinking about in helping us really make those laws coming alive and be meaningful? Because it's one thing to say, well, you have an unlimited period of time. But if you don't have access to the evidence or the evidence has degraded to the point that it's unusable from a technology perspective, you know, do you have meaningful justice?

So what should policymakers be thinking about and doing? What would you recommend?

Nelson Bunn: You can have as laudable of a goal as possible, and we could all say, “Yes, we are here to help kids. This sounds great. Let's reform the statute of limitations. Let's eliminate it maybe. This is going to better serve victims of crime.” But if you don't have, sort of, that early implementation plan—which I think is what you're getting to—then your goal can't be achieved at the end. So it may sound great and look good on paper, but if it's not practical and it's not— does not have a set plan, even if it varies by jurisdiction, but has sort of a framework for implementation and creation of a system, then you're never going to be able to achieve that goal in many instances.

To your point about VHS tapes. Yes, absolutely. I mean, technology: That's been one of the fastest changing aspects of the broader law-enforcement space even in the last five years, quite frankly. And so, whether it be a platform that is better suited, whether it be technology that can maybe convert any kind of digital evidence from sort of an old platform or mechanism to a more current model. Those are the kinds of things that from an early stage need to be thought about. And that goes back to sort of my capacity building and infrastructure building. Particularly attorneys are still sort of in that old banker's box mentality of taking records to court. And that's understandable, particularly in your medium- and small sized jurisdictions, rural jurisdictions, where they just don't have the resources or capacity. We see a lot of larger jurisdictions that have been able to really enhance their technological capabilities and in many cases have specific tech experts on staff in the prosecutor's office to work with data, to work with other digital evidence. And so there's a disparity there.

So from a policy standpoint, what is the best way to approach, knowing that every jurisdiction is different? Providing that broad framework or resource availability in order to meet each jurisdiction where they are and understand what that capability is or isn't and how to move forward that's in the best interest of the victim and seeking justice. 

Teresa Huizar: It's interesting as you were talking, I was thinking about, once we discovered—I mean, “we” in the bigger sense—America discovered that there was a rape kit backlog, and that this wasn't really about some kind of malfeasance. It was really, you know, lack of resources, not really having kept up with testing things and that kind of thing. Then large grants were developed and other kinds of resources made available. I mean, I would argue probably not enough, but some were certainly made available to deal with that backlog. And some states have made really remarkable progress on that and are, are really success stories in that.

Is there room here for sort of a second wave of—whether it's through a grant program or whether it's through other types of appropriations—is there kind of room for another wave of legislation that is really about resourcing this so that we get, as you're saying, an implementation plan in place and really have the resources to make sure that we're realizing the gains of the statute of limitations reform and we're not sort of all talk and no substance on the issue of justice for victims?

Nelson Bunn: I do think there's room for additional resources and in a world that is so polarized and partisan in terms of politics, I think the victim aspect and making sure that victims of crime have the resources, have the sort of wraparound services that they need, is a common area of bipartisanship.

And you brought up the rape kit backlog and, you know, programs like the Debbie Smith money that goes toward lab capacity. And one thing that we did at NDAA is we got the Justice Served Act passed, which was additional funding coming out of that Debbie Smith program writ large that can look at cold cases and helping that capacity building for prosecutors. Because cold cases, similar to cases where a victim may come forward later, with, you know, statute of limitations, reform or elimination. And those cases—the homicide that happened last week is much easier to deal with the current environment than the homicide from 20 years ago or the uh, sexual abuse that happened 20 years ago. And so we got some funding set aside for prosecutors and the, and the phrase we sort of used is: We've put all these resources toward reducing the rape kit backlog, but now it's time to prosecute the rape kit backlog.

And so, so I, I would add that there is an opportunity for us and other stakeholders to not only look at the statute of limitations issues from a policy perspective on the concept, but look at it from a resource perspective. And if we start to see where even more states, either reform or eliminate the statute of limitations, that it's time to prosecute that backlog in a way of child sexual abuse cases and allow prosecutors law enforcement and CACs—whoever is involved to have the resources and capabilities that they need to ultimately seek that justice and actually serve that justice.

So I hope that makes sense. 

Teresa Huizar: It’s a great segue into my next question, which is: You're coming from the prosecutor perspective and you're talking on a podcast where most of the folks who are listening are other child abuse professionals, including staff at CACs. What is your best advice to a Children's Advocacy Center who—or other child abuse professionals for that matter—but for a Children's Advocacy Center, who says, they're listening to this and they're like, “I never thought about that. I've got a storage unit that's huge. That's full of DVDs and VHS tapes—

Nelson Bunn: Sure.

Teresa Huizar: “—I have not even talked to my prosecutor about what they have and how they're maintaining.” What would your recommendation be for next steps and kind of how to open that conversation? 

Nelson Bunn: We're fortunate that with the broader multidisciplinary team model with CACs that, you know, a prosecutor is involved. And so that's really important in terms of a framework that the prosecutor be included in that. But really as simple as—to your point—if they haven't really talked or spent the time to sit down with their local prosecutor and understand, you know: “What capabilities do you have? What technology are you using? Are there ways that we can leverage similar systems? Are there ways that we may be able to apply for a grant together to address a particular problem?”

As you know, the grant world is a murky world, with lots of different nuances. We get questions all the time from local stakeholders that are interested in particular grants and they ask us, “How do we apply, and who do we partner with?”

I also would just add that I think there's some basic sort of grants management training that could occur at the local level to help better identify and understand what resources are available. But then once you do identify them, talking with your prosecutor, talking with your local law enforcement agencies, to understand those capabilities. Maybe similar dollars can be leveraged or partnerships can be forged. And then I think that makes not only for a stronger front for justice, but in many ways, whether it be a federal grants or, as you know, there's so many foundations that have a lot of money in the criminal justice space right now, looking for some of that outside funding to bring in to a local jurisdiction to address some of these issues. So I think that's really important.

I would also add that stakeholders—you know, child abuse professionals—they have a lot of clout when it comes to talking to your local member of Congress, whether it be at the federal level or your state legislators.

And I tell our prosecutors all the time: Use the relationships that you have in order to advocate for yourself for additional resources or capacity, or at least to flag issues that are causing problems within your space. Oftentimes, unless they know about it, they aren't able to do anything about it. And all of the members have local staff and local offices in every jurisdiction. So, that's one thing that I think is overlooked sometimes, is to either have that local relationship with staffers but also to look for those policymakers that ultimately are not experts in every single field. There's no way—as much as they may like to think they are—that they can be experts. And so it's important to advocate and to educate on those issues in order to enhance capacity. 

Teresa Huizar: Well, thank you so much for talking about this. I think that, there are going to be so many victims in the future who benefit from the thinking and planning that we're doing today, both in prosecutor's offices and among other child abuse professionals.

Thank you so much, Nelson. Really appreciate you coming on to One in Ten

Nelson Bunn: We really appreciate the opportunity, and it's always great to talk to you, Teresa. Thank you.

 

Teresa Huizar: Thanks for listening. We hope you’ll tune in for our next episode. For more information about National Children’s Alliance and the work of Children’s Advocacy Centers, visit our website at www.nationalchildrensalliance.org.

Benefits and challenges of SOL reform
Preserving evidence
Digital evidence
Prosecuting the backlog
Advice for CACs
Learn more about NCA and CACs