Citing a 2004 decision that limits the use of videotaped interviews, Hennepin County won't prosecute a case involving 4-year-old victim.
On March 22, Sarah Dingmann marked her son Jack's 4th birthday with a shocking allegation on Facebook: that her child had been molested, and the perpetrator would probably get away with it.
The "hellish nightmare" began in January, when Dingmann became suspicious of her ex-husband's roommate for showing an unusual interest in her two young sons. After Jack told her he'd been in the man's bed, Dingmann went online and discovered that the 54-year-old had been convicted in 1984 of abusing two young boys in Hennepin County.
An investigation by Hennepin County Child Protection concluded that the man sexually abused Dingmann's son, and Golden Valley police recommended that prosecutors file a felony charge of criminal sexual conduct.
But the Hennepin County attorney's office declined to take the case, citing a U.S. Supreme Court decision in 2004 that sharply restricted the use of videotaped interviews in court. Such interviews were used routinely in child abuse cases to spare young victims, who are often deemed incompetent to testify. The Supreme Court decision established that defendants have a right to confront their accusers, forcing prosecutors to drop some cases or rethink their approach.
Dingmann was infuriated that Jack's videotaped interview with a trained social worker wasn't enough to warrant an arrest.
After dropping him off at day care, and weeping on her way to the hospital where she works, Dingmann decided she had to do something. She launched a Facebook page titled "Justice for Jack." Readers were soon pelting County Attorney Mike Freeman with e-mailed demands to charge the suspect.
"I don't want him to do this to anybody else," Dingmann said. "Jack deserves justice for what has happened."
In response, Freeman's office e-mailed a statement to Dingmann's supporters, calling the Supreme Court's decision in Crawford vs. Washington "misguided" and saying it "unquestionably set back child abuse prosecution."
Deputy County Attorney Pat Diamond declined to discuss the Dingmann case. He said the Crawford decision makes it difficult to charge suspects when the victim is too young to testify in court, but it doesn't affect most child abuse cases.
"Those are some very vulnerable people in our society that very much need our help and protection and that's what's frustrating about it," Diamond said.
Before the Crawford ruling, taped interviews were routinely accepted in place of live testimony, said Rami Badawy, senior attorney with the National District Attorneys Association.
"[Crawford] had a dramatic effect on the way prosecutors prosecuted child abuse cases nationwide," Badawy said. "Every jurisdiction had to deal with this in one way or another."
In Utah, prosecutors dropped child sex abuse charges against a former school bus driver in 2004. Two years later, the Indiana Supreme Court overturned the conviction of a man serving 35 years for molesting a 4-year-old girl. And in Minnesota, the conviction of Orlando Bobadilla was vacated in 2008 by a federal judge who said Bobadilla's rights were violated when a victim's taped interview was used against him. Bobadilla was originally sentenced to 12 years for molesting a 3-year-old boy.
A 'funny feeling'
Jack's father, Anuj, said he had no idea that the man who shared his Golden Valley house had been convicted of sexual abuse until his ex-wife told him this year.
"I was shocked," said Anuj, who moved out of the house last weekend.
Under the terms of his divorce, Anuj was entitled to spend every other weekend with his two sons. His roommate quickly became popular with the boys. He bought them presents, cooked them meals and took the older boy on errands in his car, Dingmann said.
But in January, Dingmann said, she got a "funny feeling" when her ex-husband's roommate showed up with Anuj to pick up the kids. Two days later, she was disturbed when the man told her he was planning a birthday party for her older son.
After checking into the man's criminal record, Dingmann decided to talk to her kids. As she gave Jack a bath, she told him to tell her or her ex-husband if anyone ever touched his penis. Her heart sank when her son asked if she was referring to the roommate. Dingmann called the police.
That call triggered investigations by police and child protection workers. A Golden Valley detective arranged for CornerHouse, a social service agency trained to question children who may have been abused, to interview Jack and his 7-year-old brother on Jan. 19.
Jack told the social worker that his father's roommate touched his "pee pee" with his hand and his mouth, according to a Golden Valley police report provided to the Star Tribune by Dingmann.
The next day, four Golden Valley police officers went to the house to interview the boys' father and the suspect. Anuj told detectives that he knew Jack once spent about 15 minutes in the man's bed watching TV while Anuj was making breakfast.
The suspect initially denied having any physical contact with Jack, according to the police report, but he quickly admitted that the boy had sat on his lap, hugged him and wrestled with him in the living room, according to the report.
The man admitted he was sexually attracted to young boys, and he gave police a stack of glossy ads featuring prepubescent boys, some of them in their underwear, the report said. The man said he maintained "boundaries" with Jack, but he told police he couldn't remember ever touching the boy's penis, according to the investigative report.
Based on the evidence, and the interviews at CornerHouse, the detective recommended charging the roommate with criminal sexual conduct in the second degree. On March 17, Hennepin County Child Protection informed Dingmann that her son had been sexually abused by her ex-husband's roommate.
An official with the prosecutor's office told Dingmann they couldn't move forward with the case because of the Crawford decision.
Courts change course
In that case, prosecutors had tried to use a taped statement from the wife of a man who was on trial for stabbing someone, since the wife couldn't be compelled to testify because of spousal privilege. The Supreme Court ruled that defendants had a constitutional right under the Sixth Amendment to confront an accuser. Lower courts have ruled that videotape evidence shouldn't be allowed in most cases if the witness doesn't also take the stand.
Stephen Cribari, a professor at the University of Minnesota Law School, praised the ruling. He said the court is supposed to protect citizens from "unreasonable government power" and "for the government to put people in jail and not confront them with their accusers is unacceptable in our society."
In Minnesota, prosecutors hoped their ability to use video evidence would be preserved when the Minnesota Supreme Court upheld Bobadilla's conviction in 2006.
"The Minnesota Supreme Court decision of Bobadilla opened the courthouses to a lot of maltreated children," said Victor Vieth, director of the National Child Protection Training Center at Winona State University. "When the decision was reversed by the federal court, it slammed those doors shut again."
Dingmann says she thinks the courts have moved in the wrong direction.
"It seems like they're more for the offenders than they are for the children," she said.
Editor's note: The Star Tribune is not publishing the father's last name to protect the identify of his son. The newspaper does not identify the victims of sexual abuse.