By Brittany Hansford
Assistant District Attorney in Montgomery County
“This cannot be what the law intended,” I thought to myself—can a confessed child molester get away with abusing an infant, just because the child is incapable of outcry?
Prosecutors accustomed to handling sexual abuse cases know that DNA evidence and injuries aren’t always found during medical examinations. The absence of physical evidence is not surprising and certainly not a barrier to successful prosecution. Typically, we receive cases after a child has made an outcry that something happened, and we go forward in the pursuit of justice. However, what happens when the defendant is the only one who tells?
The facts
In September 2016, Bradley Shumway told a bishop at his church that while he and his wife were babysitting some friends’ children, he took the friends’ 17-month-old daughter into his bedroom, pulled down her diaper, and touched her genitals with his hands, tongue, and penis. Later that month, Shumway told his wife the same thing but in even greater detail. He explained that while his wife was outside on the back patio talking to their daughter, he took the victim into the master bedroom and placed her on the bed. He confessed to touching the infant because he was “curious whether it would give him an erection.” He told his wife that he stopped using his mouth on the child’s genitals because of the foul smell of the diaper. Later on, he said he was touching the child with his hand and “realized he was doing something very wrong.”
Shumway provided his wife with explanations for his behavior, saying he felt like she was neglecting him when she went to lunch with her friends, leaving him to care for all the children. He blamed her for being “irresponsible” because she did not put shorts back on the infant after a diaper change.
Because of the amount of detail Shumway relayed to his wife, she was able to corroborate nearly all of the circumstances leading up to and following the crime. She recalled going to eat with a friend the weekend they were babysitting, the friend’s name, and the restaurant. She remembered leaving the shorts off the little girl because they were too small for the child. She recalled being outside on the back patio having a 15–20-minute conversation with her daughter that weekend, and she recalled her husband being inside with the victim during that conversation. She also remembered that afterwards, he was fasting and he seemed withdrawn.
Shumway’s fasting was significant. He and his wife were both deeply religious. As part of their spiritual practices, they would occasionally fast from food for a period of time to reconnect with God through focused prayer. Along with fasting, the couple practiced the spiritual discipline of confessing their sins to others in the church to obtain forgiveness from God. It was the practice of confession that first pressed Shumway to admit the crimes to his bishop, and it was the observed fasting after the assault that suggested to his wife that something significant may have occurred.
After Shumway’s admission, a sexual assault nurse examiner performed a physical examination of the victim and found no evidence of injury. She was unable to collect any physical evidence due to the untimeliness of the exam, which was almost two months after the crime. Even in acute (i.e., immediate) sexual assault exams, injury and DNA are rare, but after a lengthy delay, they become practically nonexistent.[1]
To make the case even more heinous, decades earlier the defendant had told his wife about molesting another infant when the couple lived in Utah. That child, whom they were babysitting, was also in diapers and was preverbal. That case was never reported to authorities.
Knowing that I was dealing with a man who is likely to continue to abuse children, I had to start by delving into the corpus delicti doctrine.
What the doctrine says
The corpus delicti doctrine is a common law rule stating that other evidence tending to show that a crime was committed must corroborate an extrajudicial confession. Recent Court of Criminal Appeals decisions required corroborating evidence, independent of the confession, that showed the “essential nature” of the offense committed. The amount of detail Shumway’s wife was able to corroborate gave me the tools I needed to forge ahead, but I also knew the “essential nature” of this type of offense is typically not proven without an outcry, DNA, or an injury. I believed this case could shape the law in Texas, for better or for worse. We pushed onward.
Chief Prosecutor Nancy Hebert and I picked a jury and put on our evidence in May 2018. The defense came prepared with a bench memorandum arguing for an acquittal under the corpus delicti doctrine, but Judge Patty Maginnis allowed the case to go to the jury, which eventually found the defendant guilty of two counts of indecency with a child. During the punishment phase, the court heard about the defendant’s prior molestation of another infant, and the judge handed him two 20-year sentences and ordered that the sentences be served consecutively. After the sentence was pronounced, Shumway appealed, claiming that the evidence was insufficient to support a conviction because it did not satisfy the corpus delicti doctrine.
The law and appellate arguments
On appeal, we argued that our evidence was sufficient to meet the corpus delicti rule, or, in the alternative, that an exception should be made in cases like this in which a victim is incapable of outcry. In arguing that our evidence was sufficient, we highlighted these tenets of the rule:
• The Texas corpus delicti rule requires only that the independent evidence tends to prove—not that it fully prove—the corpus delicti.[2] (Corpus delicti in Latin means “body of the crime,” meaning concrete evidence of a crime, such as a corpse.)
• The amount of evidence required to corroborate the accused’s out-of-court statement is not great. As long as there is some evidence that makes the crime “more probable than it would be without the evidence, the essential purposes of the rule have been served.”[3]
We argued that the defendant freely and voluntarily confessed his guilt—on multiple occasions—because of his guilty conscience and his religious upbringing, and that no persuasion or coercion was used to prompt his confessions. His multiple confessions were credible and consistent, and they were corroborated in many respects by his wife’s independent recollections. Under the circumstances, any reasonable person would conclude that the defendant sexually assaulted the victim; hence, the evidence satisfied the corpus delicti rule.
In an alternative argument, we leaned into the law regarding the appellate court’s discretion to recognize exceptions to a common law rule—exceptions that other states have already recognized. The “corpus delicti rule is a common law, judicially created doctrine,”[4] so Texas courts are free to recognize exceptions to the rule when warranted. In support of the argument for a newly recognized exception—specifically, permitting the use of a trustworthy confession to establish the corpus delicti in a case of sexual misconduct perpetrated against a victim incapable of outcry—we discussed the original purpose of the rule and how this proposed exception would not increase concerns about the guilt of self-confessed defendants. For example, one purpose of the corpus delicti rule is to avoid convicting a defendant who has invented a crime to escape oppressive police interrogation. That concern is completely absent in a case like this, in which there was no police interrogation at all. The defendant’s volunteered confessions were trustworthy because they resulted from his religious convictions and his guilty conscience, rather than any persuasion from police, and because they were highly corroborated by his wife’s independent recollections.
In sum, we argued that when a rule operates to prevent prosecution for a grievous crime, without serving any countervailing purpose, it is time for the rule to be adjusted.[5] The State’s evidence in our case unquestionably established the defendant’s guilt beyond a reasonable doubt. Moreover, in a case where any rational juror could easily have found the essential elements of the crime beyond a reasonable doubt, there is no reason to reverse the conviction because the State relied heavily upon the defendant’s voluntary, corroborated, extrajudicial confession to prove that a crime occurred.[6]
To supplement our argument that an exception should be created, we gave examples of other states carving out similar exceptions. The Supreme Court of Colorado has abrogated the common-law rule, in part because it operated to encourage sexual violence against the most vulnerable members of society—those who cannot complain of the sexual misconduct perpetrated against them:
We are troubled that the rule works to bar convictions in cases involving the most vulnerable victims, such as infants, young children, and the mentally infirm. We are also aware that the rule operates disproportionately in cases where no tangible injury results, such as in cases involving inappropriate sexual contact, or where criminal agency is difficult or impossible to prove, such as in cases involving infanticide or child abuse. Indeed, in Colorado, LaRosa’s case is not the first of its type in which the rule has been invoked to bar conviction for sexual assault against a young child. Because the rule may operate to obstruct justice, we conclude that abandoning it will do more good than harm.[7]
The Supreme Court of Kansas also carved out an exception to the common-law corpus delicti rule, permitting a trustworthy confession to establish the corpus delicti of a crime “when the nature and circumstances of that crime are such that it did not produce a tangible injury.”[8] That court cited Colorado’s LaRosa in noting that the corpus delicti rule obstructed society’s interest in prosecuting sex crimes committed against infants, which may leave no tangible evidence of injury:
More pertinent to this case, applying the formal corpus delicti rule to crimes involving inappropriate sexual contact “seems especially troublesome” because the contact “often produces no tangible injury.” [State v.] Mauchley, 67 P.3d [477], at 484–85 [(Utah 2003)]. The difficulty is compounded when, as in this case, the young victims are unable to qualify as witnesses who could present evidence of the corpus delicti independent of the confession. See [State v.] McGill, 50 Kan.App.2d [208] at 236–37, 328 P.3d 554 [2014)] (discussing various jurisdictions’ efforts to apply the rule to cases with no tangible injury) (Stegall, J., concurring).[9]
In discussing the harm caused by the formal rule, the Colorado Supreme Court held that in cases in which the “nature and circumstances of [a] crime are such that it did not produce a tangible injury,” it will now recognize an alternative to independent proof of the corpus delicti: “That alternative route is a trustworthy confession or admission to crimes that do not naturally or obviously produce a tangible injury easily susceptible to physical proof.”[10]
In conclusion, we argued that Texas courts should likewise act to protect the vulnerable from those who would prey upon infants incapable of complaining of the sordid crimes committed against them. The defendant’s detailed, corroborated confessions to his bishop and his wife—motivated by his guilt and unprompted by any inquiries of authorities—are as trustworthy as confessions get. In addition, the punishment stage testimony shows that the defendant has repeatedly acted upon his predilection for sexual conduct with infants. To any extent that the outmoded common law might require his vindication and effectively encourage him to continue victimizing infants as uncomplaining sex objects, that law should be changed. Texas courts should recognize that the traditional corpus delicti rule should not permit the sexual assault of nonverbal infants and create an appropriate exception.
The outcome
The Court of Criminal Appeals held that our evidence was insufficient to satisfy the formal corpus delicti rule because there was no independent evidence of the “essential nature” of the crime (sexual touching). However, the Court agreed the facts of the case justified an exception. “When sufficient evidence exists in the record to support the conviction for a sexual offense with no perceptible harm against a pre-verbal child victim and a defendant’s confession is sufficiently corroborated, the failure to satisfy the corpus delicti rule should not bar conviction.”[11]
The Court recognized that crimes against children often involve victims who lack the ability to outcry and typically do not cause perceptible harm. “Failing to recognize an exception to the corpus delicti rule under such circumstances would result in the inability to prosecute such crimes despite the existence of a voluntary, reliable, and corroborated confession. Because the record contains evidence sufficiently corroborating facts in the appellant’s confessions, the corpus delicti rule should not bar his convictions.”[12]
The Court recognized a narrow exception when the confessed conduct is committed against a child incapable of outcry and constitutes a sexual offense that did not result in perceptible harm. Otherwise, “strict application of the corpus delicti rule would seem to render some crimes—such as indecent contact with a child—unprovable when committed against infant children.”[13]
In our case, the Court found the defendant’s confession was sufficiently corroborated by the following evidence we developed in trial:
1) Shumway watched the child at a time consistent with his confession;
2) his wife took the child’s shorts off for a portion of the weekend;
3) his wife left Shumway with the child while she was in the backyard with her daughter; and
4) his wife left Shumway to watch the children while she met with friends for lunch that weekend.
In addition, the State presented evidence that Shumway was fasting after the target weekend (which signaled some internal religious turmoil); he was emotionally withdrawn after that weekend (which also indicated that something had occurred); and he confessed consistently and voluntarily to two separate individuals (neither of whom held coercive powers of the State over him).[14]
The takeaway
If you are preparing for trial on a case with a confession to sexual conduct with a victim incapable of outcry, I recommend reviewing the case with the following questions in mind:
• To whom did the defendant confess?
• Was the confession voluntary?
• Are the circumstances surrounding the confession corroborated?
• Was the confessed conduct a sexual offense that did not result in perceptible harm?
• Was the victim incapable of outcry?
When developing the record in trial, it is always important to lay a good foundation for appellate arguments. Go into detail with witnesses about circumstances showing that the confession was voluntary, especially if the confession was to law enforcement. Make sure to cover every detail that can possibly be corroborated. In our case, Shumway’s wife testified to the date, the county, the existence of the child, the fact that she and her husband babysat that weekend, the access the defendant had to the victim when she was outside with her daughter, that the child not wearing shorts, and the fasting after the fact. Every detail mattered. When Shumway confessed to his wife, he also informed her that he confessed to the bishop as well. His wife then recalled Shumway’s visit to the bishop and his subsequent fasting, both events which Shumway did not explain at the time but which made perfect sense after his confession. It was clear to his wife that Shumway was attempting to deal with guilt from something he had done, something which was very troubling to him spiritually.
It is important to have a sexual assault nurse examiner explain why a sexual offense did not result in perceptible harm. Ask questions about the likelihood of injury, the likelihood of leaving DNA, whether this was an acute or non-acute exam, how that affects those likelihoods, and the quick-healing properties of the genital region. In addition, discuss the nature of the confessed conduct: touching versus penetration, over the clothes or under the clothes, and the expectation of injuries resulting from that conduct. Even penetration is not likely to cause injury, much less touching.
In conclusion
The wife of the defendant was of paramount importance in prosecuting the case against her then-husband. She is a strong, extremely eloquent person and a survivor. I think it is important to remember that the impact of one person’s crime goes beyond the defendant and the victim; it touches and creates burdens for others as well. A wife and children will now live without a husband and father (though that result is what justice demands).
Lastly, and most importantly, never stop pursuing what is right. Chief Nancy Hebert repeatedly emphasized perspective when evaluating this case. The law needs to make sense. The law should protect a defendant’s rights, but it should also protect our community, especially those most vulnerable. When I got this case, I knew I had to try it despite the apparent rigidity of the traditional corpus delicti rule. I refused to believe that protecting defendants’ rights requires not pursuing justice for innocent children. There is a fine line here. As attorneys, we may not ethically bring a proceeding or assert an issue without a good faith basis for doing so. But we can make good-faith arguments that the existing law should be extended, modified, or even reversed. We sensed a softening in contemporary applications of the corpus delicti rule and believed that this case merited exploring it further.
If you come across a case that is righteous but would require rethinking the way things have been done in the past, talk to someone about it. Things change over time and the law is no exception. The law must adapt along with the world we are living in. I am very thankful that my office allowed me to pursue this case though we were not certain the law would be construed favorably to our facts. Sometimes that is the only way to spark change. We achieved that change, and so many kids in Texas are now safer as a result.
Endnotes
[1] Joyce A. Adams, Karen J. Farst, and Nancy D. Kellogg, Interpretation of Medical Findings in Suspected Child Sexual Abuse: An Update for 2018, Journal of Pediatric and Adolescent Gynecology (2018), Vol. 31, Issue 3 (finding that most sexually abused children will not have signs of genital or anal injury, especially when examined nonacutely. A recent study reported that only 2.2 percent (26 of 1160) of sexually abused girls examined nonacutely had diagnostic physical findings, whereas among those examined acutely, the prevalence of injuries was 21.4 percent (73 of 340).)
[2] Criner v. State, 868 S.W.2d 29, 30 (Tex. App.—Beaumont 1994, pet. ref’d).
[3] Id. (quoting Gribble v. State, 808 S.W.2d 65, 72 (Tex. Crim. App. 1990)); accord Bordman v. State, 56 S.W.3d 63, 72 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
[4] Carrizales v. State, 414 S.W.3d 737, 740 (Tex. Crim. App. 2013); see, e.g., Miller v. State, 457 S.W.3d 919, 927 (Tex. Crim. App. 2015) (recognizing the “closely connected crime exception” to the corpus delicti rule).
[5] See, e.g., State v. Mauchley, 67 P.3d 477, 487–88 (Utah 2003) (holding that “additional procedural and constitutional safeguards that have been recognized since the rule’s inception make the [corpus delicti] rule unnecessary”).
[6] See and cf. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) (holding that the same standard of proof should be used in assessing the sufficiency of either direct or circumstantial evidence, and that the “exclusion of outstanding reasonable hypothesis” analysis should no longer be used in cases relying upon circumstantial evidence).
[7] People v. LaRosa, 293 P.3d 567, 575 (Colo. 2013) (footnotes omitted).
[8] State v. Dern, 362 P.3d 566, 583 (Kansas 2015).
[9] Id. at 579.
[10] Id.
[11] Shumway v. State, No. PD-0108-20, 2022 WL 301737, at *1 (Tex. Crim. App. Feb. 2, 2022).
[12] Id.
[13] Id. at *8.
[14] Id. at *10.