The State V. Krivacska
AN INCREDIBLY DEVASTATING SEQUENCE OF
EVENTS: THE STATE V. KRIVACSKA
In the fall of 1993, a teacher approached Dr. James Krivacska, Clinical Director of a school for students with extreme disabilities. She was highly concerned about Isaac (all names but Dr. Krivacska’s are fictitious), one of her students with extreme intellectual impairments.
She reported that Isaac, age 13, was inappropriately displaying erections and needed sexuality education to correctly respond to his body’s changes. His problem was serious. Its social ramifications could prove harmful.
A Logical Choice
Dr. Krivacska was the logical choice to solve this problem. He was an accomplished school and forensic psychologist with vast experience in special education. He had served as president of a statewide association of psychologists, had trained with a renowned sexologist from Johns Hopkins University, and had published professional articles about forensic psychology, developmental sexology, and the prevention of child abuse. He had co-edited the Handbook of Forensic Sexology and had given invited addresses on these topics to numerous professional organizations, including SIECUS, Planned Parenthood, and the Society for the Scientific Study of Sexuality.
At one of these conferences, the education director of a national chain of residential treatment programs asked Dr. Krivacska to develop a sexuality curriculum for its adolescent and adult residents with extreme intellectual impairments and related disabilities. Commercial curricula were too abstract for them. They needed concrete, explicit instruction in appropriate and healthy sexual outlets, such as appropriate times and places to masturbate, a recurrent, distressing problem with harmful ramifications. Seeing the need, Dr. Krivacska began to develop the curriculum.
The First Accusation
Soon after meeting with Isaac’s teacher, Dr. Krivacska began counseling and educational sessions with Isaac, using commercially available materials for sexuality education as well as concrete portions of the curriculum he recently developed for adolescents with extreme intellectual impairments. Among the concepts Dr. Krivacska taught Isaac was when and where it was appropriate and inappropriate for Isaac to masturbate. By the spring of 1994, Isaac’s teacher reported that Isaac looked forward to his sessions, had adjusted well, and had stopped evidencing inappropriate sexual behavior. Nevertheless, the sessions would soon cause Dr. Krivacska endless and immeasurable pain and grief.
In the late spring of 1994, Isaac and his mother moved to the Deep South, where he spent weekends at his Aunt Rudy’s house. Aunt Rudy was a nurse and evangelical pastor who claimed to work with children who had sexually abused other children. Sexual abuse was such a grim concern of hers that she admitted to repeatedly questioning her children and Isaac about whether they had been sexually abused. In response, Isaac’s teenage cousin, with whom he shared a bedroom, complained that in bed at night Isaac masturbated.
Aunt Rudy confronted Isaac about this, warning him that his masturbating would evoke God’s anger. Another of Aunt Rudy’s sons, a youth minister, hammered home this message with Isaac. When Isaac was again caught masturbating, Aunt Rudy questioned him, asking him if anyone had touched his “privates.” Isaac testified that she asked him “a hundred times” and he said “No.” She told him that someone had to teach him to masturbate and kept nagging him, insisting he identify the person.
Dr. Krivacska, using his and commercial curriculum materials, had taught Isaac when and where it was appropriate and inappropriate to masturbate. This was Dr. Krivacska’s job: helping Isaac. But with Isaac’s disabilities, including extreme intellectual impairment, Isaac had little chance of understanding the underlying meaning and implications of Aunt Rudy’s nagging. He interpreted her questions factually—who taught him about masturbation—and he identified Dr. Krivacska. Though Isaac continued to deny that Dr. Krivacska had sexually abused him, Aunt Rudy’s relentless and demanding questioning ultimately pressured Isaac to change his answer. “No” became “Yes.” For Dr. Krivacska, Aunt Rudy’s incessant questioning—a tactic known to create false memories and statements—started an incredible and devastating sequence of events.
Dr. James Krivacska
The police confronted Dr. Krivacska with Aunt Rudy’s accusations; he denied them vigorously. He demonstrated their implausibility, given the public location of his office, the frequent traffic that flowed around it, and his open-door policy, which resulted in frequent and often unexpected and unannounced visits. Nevertheless, in the fall of 1994 the police arrested him. Word spread quickly. Soon, the parents of Tony, a teenage student at the school, learned of Dr. Krivacska’s arrest and the accusations behind it.
The Second Accusation
Tony had autism, extreme intellectual impairments and suffered from Fragile X syndrome. Despite Tony’s extreme limitations, including little ability to understand what was occurring around him and the implications of his words and actions, authorities used his statements to again charge Dr. Krivacska with sexual abuse.
Tony’s history casts prodigious doubt on the believability of his statements. Years before, at school, Tony claimed that his eight-year-old cousin had sexually penetrated him while showing him pornographic magazines. For years afterward, he obsessed and perseverated about buttocks, masturbation, and anal penetration. Similarly, he once claimed that he had anal sex with his female speech therapist and his younger brother’s teacher. Given his echolalia, the tendency to repeat words or phrases obsessively, he repeatedly said that people were “putting peepees in heinies.”
After Tony overheard his parents discussing Isaac’s accusations, he claimed that Dr. Krivacska touched him. Subsequently, police and child protective service workers interviewed Tony, ignoring the New Jersey Supreme Court’s caution, in the notorious Kelly Michael’s case. To prevent false accusations, the Court strongly cautioned authorities to make video or sound recordings of interviews with “child victims of alleged sexual- abuse.”
Despite the failure of investigators to make video or sound recording of Tony’s interviews, they again charged Dr. Krivacska with sexual abuse. Sadly, the lack of recording, recording needed to validly assess the veracity of the boys’ memories and statements, would prove devastating.
Isaac and Tony’s Pre-Trial Competency Hearing
Because of Isaac and Tony’s extreme intellectual impairments, the defense obtained a pretrial hearing to determine the boys’ competency to testify. A judge, not a jury, would hear the testimony, assess the evidence, and rule. This same judge would preside over Dr. Krivacska’s trial.
Central to the boys’ competency to testify was the question of whether their memories had been tainted by improper questioning tactics, tactics that might easily have produced false memories and statements.
The defense requested the boys’ school records. The defense attorney and experts needed them to demonstrate the true extent of the boys’ intellectual and related disabilities, their understanding of what they were saying, their history of inappropriate sexual behavior and statements, their requests for counseling sessions with Dr. Krivacska, the link between the sessions and the boys’ improved behavior, the parents’ lack of concern about the boys’ behaviors during the months Dr. Krivacska worked with them, their historical dependence on adults to determine the accuracy of their statements and the revisions the boys needed to make, and the suggestibility of the boys and the false memories and false accusations it could produce. Inexplicably, the judge denied the defense’s request, citing confidentiality concerns.
The judge’s justification of confidentiality was illogical as Dr. Krivacska had been custodian of school records and as such had been familiar with the boys’ records. Moreover, it was unjustified; it made the confidentiality of school records—records to which many people had access—far more consequential than the probability and horror of a man’s imprisonment. And unknown to Dr. Krivacska, it foreshadowed what was to come.
Though the defense lacked access to these critical school records, the state’s experts did not. The parents provided them. Thus, at the competency hearing and at trial, the parents and the state’s experts had the records they needed to directly testify about the boys’ functioning. They could—and did—embellish them to create an inaccurate picture of the boys as credible and competent to testify. Without the records, the defense was virtually powerless to directly refute these embellishments and inaccuracies.
Isaac and Tony’s teachers offered testimony contradicting some of the state’s assertions. The teachers testified that sessions with Dr. Krivacska improved the boys’ functioning. They testified that they frequently interrupted sessions with Dr. Krivacska to get Isaac or Tony for class, and they did this unexpectedly, without announcement. In so doing, they never found Dr. Krivacska’s door locked and never saw him acting inappropriately. The state’s prosecutor argued that the teachers were protecting Dr. Krivacska, making their testimony untrustworthy. And again, without the boys’ records, the defense could not directly refute the state’s argument.
After evaluating the boys, the state and defense experts had agreed that both had extreme disabilities, that leading questions made both boys highly suggestible, and that even without leading questions, Tony was particularly incoherent. They also agreed that the boys had undergone coercive, highly suggestive questioning that had probably tainted their memories.
But these agreements failed to survive the confusing and contradictory twist the state’s experts used to undermine these agreements.
The twist was the untested, unvalidated, and unscientific methods the state’s experts used to assess the boys’ ability to resist suggestions, suggestions capable of producing false memories and statements. The experts constructed these idiosyncratic methods solely for this case, admitting they had not been scientifically validated. Nevertheless, from these untested and unvalidated methods they concluded that the boys were competent and many of their memories of abuse were untainted. They claimed that their methods and conclusions were extensions of Dr. Steven Ceci and Dr. Maggie Bruck’s joint research. As you’ll later read, Dr. Bruck strongly disagreed.
The judge allowed the state’s experts to present their results as expert opinion. By so doing, he contradicted eighty years of legal precedent in New Jersey, precedent that required methodologies to be “generally accepted” in the profession before their results could be admissible. And he again contradicted eighty years of precedent and undercut the defense’s case by rejecting their scientifically validated and “generally accepted” methods, and, as a consequence, their findings. In essence, by dismissing science and embracing unscientific methods and their results, the judge shredded one of Dr. Krivacska’s main defenses.
The judge continued to shred much of the defense’s case by allowing the state to present interview evidence that ignored the Kelly Michael’s caution of New Jersey’s Supreme Court. Here, the Court cautioned authorities to make video or sound recording of their interviews with alleged child sex abuse victims. Courts and defenses needed such recordings to assess children’s exposure to suggestive questioning, questioning that a compelling body of peer-reviewed research had shown could easily implant false memories in children’s minds, causing them to make false statements.
In Dr. Krivacska’s case, the investigating detective did not record his first interview of Tony. This, he admitted, was intentional. And this, the judge ruled, did not violate Dr. Krivacska’s rights. Not surprisingly, the judge never explained how this or any defense could then, without video or sound recordings of interviews, effectively identify and challenge the interviewer’s tactics and their likely effects on children’s answers. This hobbled the defense’s ability to assess, and if needed, challenge the veracity of the boys’ statements.
One of the boys underwent a second interview with a detective. Again, authorities failed to make a video or sound recording. Here, the judge allowed the state to give the defense an inexact, non-verbatim, and uncorroborated reconstruction of the questions and answers. (Nevertheless, even the state’s experts found the detective used highly leading questions.) By allowing these unsubstantiated interviews into evidence, without video or sound recordings for the defense to directly identify and assess the influence of detective’s tactics on the boy’s memory, the judge dismissed the science of questioning children and creating false memories.
During testimony, Tony said his parents told him how to answer the questions he would be asked. He defined “truth” as what his parents told him. “Not truth” was anything they did not tell him. Apparently, the judge had no difficulty with the parents’ prepping of Tony and his definitions.
Not surprisingly, the judge’s acceptance of the untested, unvalidated, and unscientific methods of the state’s experts, his rejection as scientific the “generally accepted” ones of the defense’s experts, his willingness to tolerate the intentional failure of authorities to electronically records the boys’ interviews, his willingness to let into evidence unverifiable testimony about the interviews, and his willingness to tolerate Tony’s definition of “truth” and “not truth,” lead to this foreshowed conclusion: both boys had untainted memories and were competent to testify.
At the trial, the boys offered inconsistent accounts of abuse. For example, during a videoed interview with one of the defense’s experts (who did not testify at the trial), Isaac spontaneously claimed that he and Dr. Krivacska never had oral sex. During the trial, Isaac claimed they did.
And despite a state expert’s prediction that Tony was immune to suggestibility about his experiences, defense counsel easily punctured this assertion by simply asking Tony a few suggestive questions. Quickly Tony wove the questions into a fabricated story of how he and Isaac met and discussed Dr. Krivacska’s abuse. This meeting, however, contradicted the state’s vigorous assertion that the boys had never met. Ironically, school staff confirmed the state’s vigorous assertion.
The jury found Dr. Krivacska guilty of aggravated sexual assault, criminal sexual contact, and endangering the welfare of a child.
On written appeal, Dr. Krivacska‘s new attorney raised numerous challenges, including, but not limited to the defense’s lack of access to critical school records, the admission of unscientific, unvalidated expert testimony, and the ineffective assistance of the defense attorney.
On this latter point, Dr. Krivacska’s original attorney decided the testimony of defense experts was unnecessary to explain Isaac and Tony’s intellectual limitations and suggestibility. He decided it was unnecessary to have experts explain the research showing the questioning tactics that interrogators used with Isaac and Tony could readily produce tainted memories and false statements.
In line with this, the state’s experts claimed that their untested, unvalidated, and idiosyncratic methodology and conclusions embodied the highly-regarded research of Dr. Stephen Ceci and Dr. Maggie Bruck, frequent research partners and acknowledged leaders in assessing and understanding children’s suggestibility, tainted memories, and false statements.
The courts rejected Dr. Krivacska’s appeals.
Dr. Maggie Bruck’s Strong Dissent
Dr. Bruck, Professor of Psychiatry at the Johns Hopkins University School of Medicine, strongly disagreed with the methods and conclusions of the state’s experts. She saw no justification for their claims that her work with Dr. Ceci supported their methods and conclusions. She believed the opposite.
She believed the tactics used to question the boys could readily have produced false memories and statements. A few years after the trial, in an amicus brief for Dr. Krivacska, she concluded:
The record of this case provides numerous examples of suggestive questioning applied to the children in this case. The absence of electronic recordings makes it impossible to measure the total amount of suggestive tactics used by all of the adults who interviewed [the two boys] and importantly exactly what the children said in the first and subsequent interviews. From the available materials, however, we can conclude that the children were confronted with the same types of suggestive tactics that have, in laboratory studies, caused children to make false reports that are indistinguishable from accurate reports. Because these techniques have a high risk of tainting reports, there is no scientific method through which one could conclude that the reports of molestation made by these children during or subsequent to suggestive interviews are accurate or reliable.
One example she cited was Aunt Rudy’s statement to a police officer:
When I was describing to my husband Harold the type of behavior, you know, he said this is not something normal. This is learned behavior the way he is doing it. He said it’s normal for a boy to play with himself he said, but he’s doing more than that. So I called Isaac in the room and we closed the door and Harold began to question him, about you know, this is something someone had to teach you. Did anybody teach you this, and Isaac he got real shaky, real nervous like, and you know, his eyes began to well up with tears and then I told him, I said Isaac look, if you tell me this I said nobody is going to bother you. You need to let us know if anybody has touched you in your private parts or had you do something against your will and that’s when he began to say his friend and I said who is your friend? Dr. Jim, and I said well who is Dr. Jim.
Another example was Isaac’s testimony about his Aunt Rudy’s repeated questioning:
[It] caused [Isaac] to abandon his insistence that he had never been molested and agree that he had been. Isaac explained that after he told his Aunt Rudy that he had not been molested: “[S]he says: Are you sure? And I says, yes. She says: Have anybody touched you? And then I said alright. And then she finally got out of me after she asked me hundred times [sic], hundred times asking me, and I said okay.”
Since March 12, 1999, Dr. Krivacska has been in prison. He was forced into bankruptcy, suffered illnesses, lost seven teeth due to inadequate dental care, lost a parent. Some friends and colleagues stood by him; others deserted. Upon release, he has no chance to practice his profession. He has little chance to get and keep a minimum-wage job or live in safety. He is marked. His crime: dedicating his professional life to helping children in need.
On February 6, 2014, the state released Dr. Krivacska from prison. Despite knowing that he would face a harsh reality, he and his friends were ecstatic.