She Accused Him Of Molesting Their Daughter
By Anne C. Vitale
From the December 13, 2004 Missouri Lawyers Weekly.
A father who was acquitted of sex abuse charges made during a custody battle has won nearly $170,000 in his Clay County malicious prosecution case.
William Bather of Liberty, Mo., claimed that his ex-wife fabricated allegations that he molested their 7-year-old daughter, which led to a three-count grand jury indictment.
Bather was also the victim of “suggestive interviewing” when authorities questioned the girl, according to Mark J. Murphy, whose firm represented Bather at both the criminal and civil trials.
“This case, like a lot of cases, was about the truth,” said Murphy of Liberty. “We wanted to create and maintain credibility throughout the trial, and we never wanted to make the case about money. We agonized about how much money to ask for, and we did not want to destroy credibility by getting greedy.”
An attorney for the defendants said that the malicious prosecution case should not have been submitted because a grand jury indictment is prima facie evidence that there was probable cause for the criminal case.
A report on the Dec. 1 verdict in Bather v. Logan, et al. appears on Page 12.
Bather and his now ex-wife, Holly, married in 1991. Their only child was born in 1995. The couple separated in 1996 and got divorced in 1997. Holly got remarried to David Logan in 1998, but Bather never remarried.
According to the original custody arrangement, Bather had primary custody of the girl. Logan had liberal visitation, resulting in a 70/30 custody split between dad and mom.
Murphy said the parents continually tweaked the custody arrangement out of court until 2000. Bather always had primary custody, even after the unofficial modifications. His custody remained around 70 percent until Logan filed a motion to modify custody seeking to take primary custody of the girl away from Bather.
He said the parties settled on the courthouse steps in August, 2000. Each parent was to have equal custody, with alternating weeks of visitation. The judge officially modified custody in February, 2001, when the girl was nearly 6 years old.
In early June, 2002, Murphy said, the girl was supposed to spend the weekend with her mother and then leave on a trip to Florida with her father the following Monday. On that Friday, he said Logan reported to the Missouri Division of Family Services that her daughter had disclosed that Bather had “put his privates on her privates,” but she denied penetration.
Murphy said that Logan followed the instructions from DFS to call the police. At the police station, he said, Logan told the police officer that the girl had disclosed the abuse to her. When asked when the abuse occurred, Logan told the police that as far as she could surmise, the abuse last happened in April, 2001, over a year earlier.
In August, Bather was indicted by a Clay County grand jury on three felony counts of sexual misconduct. He was charged with rape, sodomy and child molestation. Murphy’s father, J. Michael Murphy, was lead counsel in a criminal suit.
At the trial, Murphy said, their theory was that the girl’s story didn’t make sense and was the result of “suggestive interviewing.” He said their expert, Dr. Gerald Vandenberg, reviewed the child’s videotaped interview conducted at the Child Protection Center and found the interview “terribly deficient.” He said Dr. Vandenberg concluded that the interview was full of “yes-no” leading questions and suggestive drawings, and was “simply unprofessional.”
Murphy said the girl gave no details about where or how the abuse occurred, but was still sure that she had been the victim of a “bad touch.” He noted that Bather addressed the only incident that might be considered a “bad touch.” Bather explained that the incident involved the application of diaper rash-type medications to the child’s genitals, but that he had not applied such cremes since the child was 4 years old.
At the criminal trial, Murphy said they also stressed the lack of any physical signs of abuse and the fact that Logan couldn’t keep her story straight. He said that everywhere Logan went to report the disclosure, each investigator wanted to know what the girl told her. He said Logan had to repeat the story to DFS, the Liberty Police Department, the judge in the custody modification, The Child Protection Center, Children’s Mercy Hospital, and finally, to the judge in the criminal trial, but each time Logan provided a slightly different account.
At the conclusion of the three-day trial in March, 2003, the jury deliberated less than three hours before returning not guilty verdicts on all charges.
After the acquittal, Murphy said, Bather kept demanding to see the girl, but Logan refused. He said Bather sent Logan an e-mail informing her that if she did not allow his visitation per the custody arrangement, he would sign the girl out of school during the week he was supposed to have custody. Again, Logan refused to cooperate.
He said Bather then went to the police, showed them his custody order and explained that he planned to sign the girl out of school. When he arrived at the school to carry out his plan on Nov. 24, 2003, the principal called the police and Logan to sort it out. Logan arrived screaming, “he raped her, he hurt her, he sodomized her, she is not safe with him, and there is an order which prohibits him from seeing her.”
Murphy said that all of Logan’s statements at the school were false. Although there was no order prohibiting contact, the police and principal erred on the side of caution and would not allow Bather to see his daughter.
Following this incident, Murphy said that Bather then sent Logan a certified letter notifying her that her statements were slanderous. Bather demanded that Logan write to the school and inform them that her statements were false. When Logan refused to write the letter, he said Bather sued her for slander.
Shortly before they filed suit, Murphy noted that Clay County Judge James Welsh had modified custody in April, 2004. Although he found that there was insufficient evidence to support a finding of sexual abuse, Judge Welsh awarded 70 percent custody to Logan and 30 percent custody to Bather – but gave Bather a schedule of progressively increasing visitation to be supervised for the first 16 months. After July, 2005 Bather will begin unsupervised visits with his daughter, once a week and every other weekend. Murphy has appealed this decision, arguing that the trial court restricted visitation without finding that the child would be harmed without the restriction.
During discovery for the civil trial, Murphy said he learned that Logan and her husband made additional statements to the girl such as, “your dad said that you lied,” or “your dad says that you are a liar.” However, he said Bather had never called his daughter a liar or accused her of lying about anything. He said Logan and her husband knew this, but continued to make false statements.
Furthermore, Murphy said that Logan and her husband continued to tell the girl that her father “made a bad mistake by abusing you.” Thus he said that even after the acquittal, her mother and stepfather attempted to reinforce that the alleged abuse took place.
Bather sued Logan and her husband for these knowingly false statements. Bather argued that they were attempting to damage his relationship with the girl – at a time when they were not allowing Bather to see his daughter, which compounded the damage.
According to Murphy, Bather testified that Logan’s lies to the school caused the school to stop sending him notices, stop notifying him of parent-teacher conferences, and stop sending him report cards. He further testified that the lies Logan and her husband directed to the girl caused her to no longer trust him, stop asking his opinion, and stop sharing her feelings with him.
On the malicious prosecution count against Logan, Murphy said he asked the jury for $9,000 for lost wages, $60,000 for damage to Bather’s reputation and the stress of being charged with child molestation, $26,600 for Bather’s cost of defending himself, and $22,000 in punitives – which reflected one year’s salary for Logan.
On the slander count against Logan, he said he asked for $10,000 – $5,000 for each slander incident to the school and to the girl, and $5,000 in punitives . a quarter of her yearly salary. On the slander count against her husband, he asked for $5,000 for damages to Bather’s relationship with his daughter resulting from the false statements to her, and $20,000 in punitives – reflecting a quarter of his yearly salary.
After deliberating for nearly 4 hours, the jury returned a unanimous verdict awarding exactly what Murphy had requested, plus an additional $11,000 in punitive damages on the malicious prosecution count.
“It was very special to be a part of,” Murphy said. “The case was an easy one to become passionate about. At stake were a father’s only daughter and a man’s reputation. I can’t think of too many things that are more important than that.”
Murphy added that most of the jurors waited outside to congratulate them and thank them in person when they left the courtroom. “After the verdict, people who had never even met Mr. Bather hugged him,” he said. “For two years, Mr. Bather was ostracized in our small community. The sight of complete strangers embracing him in the courthouse halls was surreal.”
Steven D. Wolcott of Liberty, who represented the Logans, said he and his clients were “obviously disappointed” with the verdict. He said he will file post-trial motions seeking a new trial or setting aside all or parts of the judgment.
“Defendants’ motions for directed verdicts should have been sustained,” Wolcott said. “Mr. Bather had been indicted by a grand jury, which is prima facie evidence of probable cause. No evidence was presented by the plaintiff of his reputation in the community either before or after the filing of the criminal charges. Only the plaintiff and his mother testified in regard to damages.”
Although Murphy was pleased with the outcome of the civil trial, he expressed concern with the larger context of the case.
“To have a criminal jury unanimously find him not guilty and then have a second jury unanimously say that Holly Logan maliciously prosecuted him is complete vindication,” he said. “But on a bigger scale, I think it also says something about the underlying investigation.
“I think it is fair to ask the question that if two juries can unanimously see that, one, the abuse did not happen, and, two, that the mother had ulterior motives, why did my client ever get charged? I believe that no one even considered the possibility that my client did not abuse his child,” he said.
“That is a scary thought considering there was no physical evidence of any abuse and that the allegation is coming from an ex-wife who just got done fighting over custody. To risk putting an innocent man in jail for the rest of his life without someone taking an objective look at the parties and their stories is concerning.”