The woman clutched her arm as she told the story of a mother’s worst nightmare: the sexual abuse of her children by their own father.
Her kids were further traumatized by a New Mexico judicial system that she and other critics say is failing to support vulnerable kids.
“We’ve just gone through a hurricane and now we’re in post-hurricane wreckage,” said the woman, who asked to be identified only as Eliza to protect her children’s identity.
Selito Dos Santos of Pecos was convicted in a Las Vegas, N.M., courtroom last month on two counts of raping Eliza’s daughter, who was 2 years old at the time, and one count of molesting the girl. He was sentenced to 36 years in prison.
Eliza, who now lives out of state with her now 7-year-old son and 4-year-old daughter, is relieved the 2½-year-old case has been resolved and Dos Santos is behind bars.
“At least we feel safe, that our lives aren’t in danger,” she said, adding Dos Santos had threatened to kill her son.
But Eliza and her kids are still wrangling with the psychological effects of a state judicial process that often requires sexually abused children to testify against their accuser in open court — even if the culprit is a parent. Eliza is determined to change that. She is pushing New Mexico lawmakers for reforms.
“If the hell my kids endured can help another child, then it can lighten the heavy load my kids had to bear,” she said.
Eliza’s son, who also had accused his father of sexual abuse, agrees the system needs changes. He wants to speak up about his experiences to help alter New Mexico’s judicial system, ensuring protections for children who have endured abuse, such as allowing them to provide testimony without appearing in open court before the person who harmed them.
“I think they shouldn’t go through this,” the boy said in a recent interview. “It was hard.”
A state district judge found Dos Santos not guilty of three charges of sexually abusing his son. The state did not meet the burden of proof, 4th Judicial District Judge Abigail Aragon wrote, but she remarked in court that she believed Dos Santos had abused both of the children.
The federal government and 44 states now have statutes allowing children to testify through a closed-circuit video system without the defendant present. Some have additional provisions for child testimony, such as allowing a judge to close the courtroom while a child takes the stand, having a child testify in separate chambers and limiting the number of time children can be interviewed.
Four more states and the District of Columbia don’t have such protections written into law but have case law upholding what is known as a “Craig test,” stemming from a 1990 U.S. Supreme Court ruling that says a state can protect a child witness from the trauma of testifying.
New Mexico and Missouri are the only states with neither case law nor statutes allowing children to testify by closed-circuit video in criminal cases.
From disclosure to conviction
Dos Santos’ abuse of his children came to light in 2017, on his son’s 4th birthday, Eliza said.
The boy had asked her if he could spend the weekend alone with his father, which was unusual. She believes the boy was trying to keep his sister away from their father to protect her from further abuse. That Saturday, Eliza said, her daughter disclosed she had been sexually abused by Dos Santos.
A court affidavit said an examination by a sexual assault nurse examiner found wounds on the young girl consistent with rape.
An examination of the boy was inconclusive, the affidavit said.
Eliza estimates her children told their stories of abuse to law enforcement officers and attorneys at least eight times in the 21/2 years between her daughter’s disclosure and Dos Santos’ bench trial in October. There were safehouse interviews, meetings with prosecutors, pretrial interviews, trial preparation sessions and, finally, testimony in the state District Court in Las Vegas.
Because Eliza also was a witness, she was not allowed to watch her children testify.
Dave Yont, 64, a longtime family friend who attended Dos Santos’ trial, said he watched the children take the stand and was proud of them, but also saw their stress from what he called “intimidation tactics” by Dos Santos.
“While both his kids testified, their father stood the whole time, even though he’d walked in on crutches,” Yont said.
The little girl struggled on the stand, he said. “She fidgeted in her chair, wouldn’t speak directly into the mic and refused to face her father.”
Eliza’s son was more brave.
He “sat up straight, like a man, spoke directly into the mic and never wavered in facing his father,” Yont said.
Eliza said she had faced a choice between having her kids provide videotaped depositions or having them testify in open court. She felt being alone in a room with attorneys from both sides of the case, possibly with their father present, was the worse of the two scenarios.
“I did what I thought was best,” she said.
New Mexico lags as other states reform
Under New Mexico law, children under 16 can provide videotaped depositions before the judge, the defendant and the attorneys.
Closed-circuit video testimony is mentioned as an alternative method, but only in civil cases.
Chief Deputy Attorney General Clara Moran said, however, that prosecutors in New Mexico often prefer to avoid child depositions via video.
“Videotaped depositions are allowable in certain cases,” Moran said, “but prosecutors are usually less inclined to use that, especially in New Mexico, because there’s a myriad of other things that can occur, such as the child having to demonstrate why they would suffer psychological harm” from testifying.
Defense attorneys can ask to have a psychologist perform an exam on a child witness.
If prosecutors aren’t confident a child will able to testify against a defendant — or if the child refuses to testify — they might drop the charges.
This happened in mid-November in a case in Santa Fe involving a former school worker. The First Judicial District Attorney’s Office dropped child sex charges against Sergio Muterperl, a former teaching assistant at Santa Fe Public Schools who was accused of molesting a young student. The girl’s mother feared her daughter would be further traumatized by testifying in open court, prosecutors told a judge.
Andrea Verswijver, a local licensed mental health counselor who has worked for decades in the criminal justice system advocating for children, said kids often experience fear and humiliation from testifying in court. A child victim’s unfamiliarity of the justice system itself also can retraumatizing, she said.
“I would think that we need some legislative directive to say, ‘Hey, you just can’t do this to children,’ and to use these other mechanisms,” Verswijver said.
Prosecutors should be following best practices in sensitive cases involving children, she added.
Since the 1980s, other states have enacted a variety of protections for child witnesses, such as requiring judges to more quickly expedite cases involving children, limiting the number of interviews a child can give, allowing adults to testify about things a child has told them and allowing for testimony in an adjacent room via live television or video.
In 1990, the U.S. Supreme Court decided Maryland v. Craig in a 5-4 vote upholding the use of closed-circuit TV in child abuse cases. Critics said closed-circuit TV testimony violated the Sixth Amendment rights of a person accused of a crime to be “confronted with the witnesses against him.”
In the majority opinion, Justice Sandra Day O’Connor wrote that “the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial.”
The state can protect child witnesses from the trauma of testifying in an abuse case as long as prosecutors show the need for the practice and defense attorneys have an opportunity to adequately cross-examine the child, the justice added.
Raúl Torrez, the district attorney in New Mexico’s 2nd Judicial District in Albuquerque, has pushed for new legislation limiting pretrial interviews between child victims and defense attorneys.
Still, district attorneys and investigators heavily rely on child witnesses in prosecuting a case.
If a child is too scared to testify, a case will end before it has started, said New Mexico State Police Officer Jerry Santana. He’s worked hundreds of cases, many of them crimes against children — including the Dos Santos case.
That case was uncommon, he said, in that the children had access to services, such as counseling, which can be costly.
“You have to consider their well-being after the case,” Santana said of child victims. “A lot of people don’t have the ability to have a therapist for both kids, someone to help them work through this whole process.”
Rebuilding young lives in the aftermath
Adjusting to life in a different state has been difficult for Eliza and her children.
Her son is a funny boy — mugging for the camera during a video chat when he thought his mother wasn’t looking, eager to show off missing teeth. He also showed off his “Fairy Terrarium,” an exhibit he created with moss and figurines, and offered up his favorite subject — math — and favorite animal — cat.
But then his voice became small, serious.
He struggled over the word “testify” and said the whole experience of helping to prosecute his father made him feel “sad, happy and weird at the same time.”
He was tired of telling the story over and over. Still, he wanted to repeat the story “for other kids.”
After he scampered off, away from the camera, Eliza’s smile slipped away. Her face became drawn.
Her son still has panic attacks, she said.
As the case was proceeding, they tried pairing him with a court-appointed therapy dog, but his allergies to the animal were too strong. Finally, he requested that a police officer escort him and his sister for their protection.
Her daughter used to have temper tantrums that would last “for hours,” Eliza said, and the girl would become violent with her brother. “She would say that it was his fault, the abuse. But he couldn’t stop it; he was only four.”
Since the conclusion of the trial and Dos Santos’ sentencing, Eliza said, her daughter has improved with the help of therapy, but her son still struggles with the fear.
Judicial system reforms are necessary, she said, not just because of the psychological toll on child victims but also because the state’s laws on child testimony favor abusers — allowing too many to go free because a child is unable or unwilling to testify against a perpetrator.
Although she is no longer a New Mexico resident, Eliza has written to state senators, offering her ideas for legislation as the 2020 session approaches.
“I want people to know how current laws help child abusers silence their victims,” she said.