Appeal Challenges the Use of Dogs to Comfort Witnesses
On August 8, 2011, The New York Times ran an article about a criminal trial in June where Rosie, a trained facility service dog, was allowed in the courtroom. The case required that a 15-year-old girl testify about her father raping and impregnating her. Rosie, New York’s first judicially approved courtroom dog, sat at the teen’s feet as she testified.
The next evening, NBC Nightly News closed with a segment highlighting the use of facility service dogs in courtrooms to help victims—especially children—testify during trial. The spot included video of Ellie, one of the dogs I profiled for my article “Dogs in the Courtroom,” which was published in Bark’s May/June 2007 issue. It also included an interview with Ellen O’Neill-Stephens with her courthouse dog Molly B. O’Neill-Stephens’ disabled son’s service dog Jeeter was first used in a courtroom setting here in Washington State in 2003 and got this whole concept rolling. She has gone on, with Celeste Walsen DVM, to create Courthouse Dogs LLC, to promote the careful and thoughtful use of facility service dogs in legal settings—from forensic interviews to the courtroom. To date, ten states are allowing dogs in the courtroom. Countries such as Chile, Australia and Canada have asked Courthouse Dogs for assistance setting up programs.
The NBC News segment was prompted by the uproar Rosie caused, doing her job in that New York courtroom. Much was made of the fact that the defense team was going to appeal, in part because of the use of Rosie. One of the defense attorneys claimed that each time the victim stroked the dog during her testimony the jury would think she was under stress because she was telling the truth.
Well, yeah. Asking a child to recount a horrific event in a courtroom full of strangers, with her abuser staring at her, and defense counsel questioning her, is stressful. Historically, children have been allowed comfort items—blankets, dolls, teddy bears—while testifying. Or a support person—perhaps a relative, or victim advocate—in the observer’s section of the courtroom but within eyesight of the victim, to help calm them. These aids have withstood appeal.
As O’Neill-Stephens points out, “The dogs are often completely out of sight in the witness box, at the victim’s feet. Typically the victim simply holds the leash in their hands, which provides a sense of control for them, or they might bend down occasionally to stroke the dog’s head.” Done correctly, the use of a facility service dog in court to aid the victim would be less visible to a jury than comfort items. And certainly, the dog can’t be accused of trying to sway the jury with body language, or coaching the victim as she testifies, as some support persons have been.
As an attorney, I know that convictions are routinely appealed, on any and every basis possible. It’s one of the hallmarks of our judicial systems, and keeps everyone honest. Rosie simply provides the New York defense team with an additional ground. O’Neill-Stephens isn’t aware of any previous appeal regarding the use of facility service dogs in courtrooms although they have been used in that capacity for several years now. That may be, in part, because appeals can take years to reach full resolution, and the use of dogs in courtrooms in relatively new. Frankly, I welcome the appeals so that the issue can finally be resolved in favor of the use of dogs.
Here in Washington, Mark Roe, Snohomish County Prosecutor, remembers trying a case where he utilized Stilson, the facility dog associated with his office’s victim/witness advocates since 2006 and also profiled in my earlier Bark article. Roe’s case involved an 11-year-old girl testifying against her father, who had sex with her since she was nine. She was reluctant to tell a cop, or an interview specialist; it was gross and embarrassing. But she told Stilson, allowing for charges to be filed.
During pre-trial motions, Roe explained to the judge how Stilson helped the girl talk about her ordeal and sought a ruling allowing Stilson to be at the girl’s feet on the witness stand. Defense counsel objected to Stilson being in the courtroom, arguing that the dog being with the girl as she testified would amount to commenting on the evidence, sending a message to the jury that the judge must believe the girl because he gave her a dog.
As Roe tells it, “Judge Tom Wynne listened to arguments pro and con, and observed Stilson, lying peacefully amid the uproar between the parties. He ruled that Stilson was so unobtrusive that if the State elected, Stilson could be up at the witness stand with the child.” Roe chose to not have Stilson on the stand with the girl, however, because he didn’t want to create a possible appellate issue if the child could get through her testimony without him. Instead, Stilson sat in the back of the courtroom with an advocate, where the girl could see him, and be with him during breaks. “For all the jury knew, the advocate was an observer, and Stilson her dog.” The girl’s father was convicted.
According to Roe, “Service dogs don’t make it possible for us to prosecute child rapists. We have done that for years without animals of any sort. What service dogs do is make it easier on the little kids who have to go in and face the guy who abused them, in front of a room full of strange adults (one dressed kind of like a witch) on a day they don’t get to choose, and talk about icky stuff. Service dogs take something very hard but very important, and they make it easier. They accomplish this without saying a word that can be construed as ‘leading’ or ‘suggesting’ things to the child. They simply provide comfort and something to like about a situation kids don’t like at all.”
O’Neill-Stephens noted that in a recent, very high-profile murder case, the judge initiated a request to use her courthouse dog Molly B. The defendant, charged with rape and murder, was prone to outbursts in the courtroom. “The judge wanted Molly in the courtroom for the entire six weeks of trial. The defense was okay with it,” she said. “After all, courthouse dogs help everyone—jurors, witnesses, courtroom staff, lawyers and defendants—deal with stressful courtroom sessions. Ultimately, prosecutors decided against using Molly B because the case was already packed with possible appellate issues.”
Which is sad. Research shows that just having dogs nearby can calm people and lower their blood pressure. In courtrooms, these dogs could reduce the stress of everyone—judge, jury, clerks, prosecutors and defense counsel, witnesses and observers. Unconditional love for all involved. Where’s the harm?
Williams ended his NBC Nightly News broadcast on August 9, 2011 by saying, “Those are some good dogs.”
I predict that in ten years, this will be a non-issue, and facility dogs will be a regular feature of courthouses across the country.
Facility Dogs Versus Therapy Dogs—A Critical Distinction
One concern raised by Courthouse Dogs founder Ellen O’Neill-Stephens, which I share, is the use of “therapy” dogs in forensic interviews with victims, or in the courtroom or other legal settings. There is a vast difference in training of facility dogs versus therapy dogs. There is also a vast difference in training between interviewer specialists, investigators and prosecutors, and volunteers wanting to be helpful. The former are prepared by training, experience and disposition to deal with the horrors of the stories they hear; the latter aren’t.
O’Neill-Stephens describes a case where a volunteer and her therapy dog were in the lobby of a child advocacy center when the child walked in and immediately started disclosing to the therapy dog’s handler what had happened to her—right there in the lobby. The volunteer, unprepared for the disclosure, was traumatized and required professional counseling. The child had to disclose her ordeal again, to the interview specialist.
In another case, the volunteer and dog were asked to attend the physical exam of the child rape victim. A privacy screen was placed between the volunteer and the child, with the volunteer holding the leash of her dog who was next the child on the exam table. When the child started to cry, the dog put its paws on the table and licked the child, providing comfort. But the evidence was tainted by dog hair and the exam had to be conducted a second time.
Of course, these volunteers and their therapy dogs are well meaning and only trying to help. But the consequences of mistakes can mean re-traumatizing the victim with another interview or exam, or even an inability to file a case because crucial evidence is tainted. Dogs utilized in legal settings should be facility service dogs specially trained for that work by organizations like Canine Companions for Independence (where Jeeter, Ellie, Stilson and Molly B were all trained) or other such programs that are accredited by Assistance Dogs International. Their handlers should be the prosecutors, interviewer specialists, victim advocates and police specialists who also work in the legal arena. Therapy dogs and their handlers, as wonderful as they are, belong in therapy settings.