| In early 1989, Ginger Gorham told her husband, Kent Gorham, that their middle daughter, L., was exhibiting behavioral and emotional problems. She said that she had taken the girl, then 4 years old, to see a therapist.
The Gorhams had separated a year earlier. Ginger Gorham and her three daughters lived in Umpqua, a town in southern Oregon. Kent Gorham lived about an hour north, in Eugene. The therapist told Ginger Gorham that L. was struggling with the separation and her father’s absence during the week.
Later in 1989, Kent Gorham began dating Patricia Adams. He introduced L. and his two other daughters to Adams.
After that introduction, according to later testimony, Ginger Gorham took L. to see Marilyn Mull, a licensed clinical social worker who specialized in the treatment of victims of child sex abuse. Mull and L. met 20 times between March 1990 and November 1990.
Separately, Mull referred Lindsay to Dr. Elizabeth Young for an examination based on Mull’s suspicion of child sex abuse.
L. was examined three times by Young, first on September 12, 1990, then on October 4, 1990, and finally on September 25, 1991.
After the first examination, Young called Mull and said there was evidence of sexual abuse. During the second examination, Young would later testify, L. initially denied any “bad touching.” When pressed by Young, the girl said it only happened once. At the third examination, according to Young, L. said that Gorham had sexually abused her.
On December 23, 1991, Kent Gorham, now 47 years old, was arrested and charged with three counts of rape and three counts of first-degree sexual abuse. The indictment said the alleged acts occurred on September 15, 1989, June 15, 1991, and August 17, 1991.
Gorham’s first two trials ended in mistrials. At the second trial, his attorney had called two expert witnesses, a physician and a child psychiatrist, to rebut the testimony of Mull and Young. After that mistrial, one of the jurors spoke to the defense trial attorney and said that the defense experts hadn’t been helpful and might have even been harmful to Gorham’s defense.
When the third trial began in May 1993, in Lane County Circuit Court, the attorney decided not to call any expert witnesses but instead focus on the inconsistencies in L.’s statements.
Ginger Gorham testified that in the fall of 1991, after more than a year of therapy, L. still appeared to be in a great deal of pain. The girls had just finished a weekend with Kent Gorham, and Ginger Gorham had told them prior to the visit that they weren’t allowed to sleep in the same bed with their father. Ginger testified that Kent told her that his daughters followed his rules when they were with him.
Ginger Gorham testified that later that day, she and L. sat in a hammock in the backyard, and she asked her daughter about the sleeping arrangements at her father’s house. The girl said that Gorham sometimes slept with her and rolled over on her and snored. The next day, August 19, 1991, Ginger Gorham took her daughter to see Mull. It had been 10 months since the last session. Using anatomically correct dolls, the girl described her father’s actions in the bed but did not say there was any sexual abuse.
Ginger Gorham testified that a month later, immediately after another session with Mull, she told her daughter: “Every time I take you to Marilyn’s, I sit in the waiting room and I feel like it is Christmas because I’m waiting for the present that doesn’t come. But it never comes. You’re in so much pain and so am I. I can’t do it anymore. I just don’t have the energy to take you to Marilyn’s and I’m tapped out. I don’t have physical energy. I don’t have mental energy. I don’t have money … Please, you’ve just got to tell her. Can you tell me what the heavy thing is in your chest? And she said ‘Yes.’ And she said that Kent would touch her around the eyes, and he would touch her around the mouth, and that he would touch her chest. Then I asked her if she would tell this to Marilyn.”
The girl said yes, and L. and Ginger Gorham returned that same day to the Mull. Now, L. said that her father had sexually abused her.
Ginger Gorham had also testified that she read her daughter the same book about inappropriate touching for more than 10 consecutive nights. When L. testified about the alleged abuse, her description of the incidents closely mirrored the accounts in the book, A Very Touching Story.
Young testified that a section of L.’s vagina was “avascular,” meaning it had few blood vessels, and said that this was evidence of sexual abuse. She also said the girl had a bump on her hymen that was indicative of scarring or healing and consistent with a diagnosis of sex abuse. Young also said she noted a change in the girl’s “hymenal measurements” between the two examinations, even though no measuring tool was used for one of the examinations.
Young said that she did not use a colposcope to take photos of the girl’s genitals. Young said she did attempt to use an “expensive” and “complicated” camera, but the flash did not go off and the pictures did not come out.
Mull testified about her meetings with L. and how she came to suspect that the girl had been abused. She said that L. told her Gorham rolled on top of her in bed, pushed up her nightgown, and put his fingers inside her. L. said she asked her father to stop, but he wouldn’t. She said he told her not to tell anyone. Mull testified that she had considered the possibility of sexual abuse even before she met L. and that her standard approach was to rule out sexual abuse.
At the time of the trial, L. was 8 years old. She testified for three days and said the abuse had started only after her father began dating Adams. The prosecutor told L. to “put in [her] memory” or “put in [her] mind” an instance of bad touching to describe for the jury. L. described the events in generic terms, and she was not asked to recall specific dates or how she differentiated between the three alleged assaults.
Twice during the trial, the prosecutor asked L. about two incidents that the girl had testified about at the second trial. L. said she had no recollection. Over the objection of Gorham’s attorney, the prosecutor was allowed to read her previous testimony to the jury.
Frequently, L. would testify that she could not remember making a specific statement to investigators.
Gorham’s attorney asked her: “Isn’t it true that what you remember now is what you practice[d] saying?”
The prosecutor objected to the question as argumentative, but was overruled.
The attorney continued, “Isn’t that kind of right?”
The girl answered, “Yes.”
There were no allegations that Gorham sexually abused his other daughters. L. had testified that her older sister, W., had witnessed one of the alleged assaults. Neither side called W. as a witness. L. had also testified at the second trial that W. was telling people that she “didn’t remember anything like that happening.”
Gorham testified. He admitted that he had slept on beds and couches with his daughters but denied ever abusing any of them.
At the time, Oregon allowed non-unanimous juries. On May 28, 1993, the jury voted 10-2 to convict Gorham on all six counts. He was later sentenced to 19 years and six months in prison.
Gorham appealed, arguing that his trial attorney had been ineffective in failing to present expert testimony rebutting the state’s witnesses.
As part of the motion, Gorham including an affidavit from Dr. Charlene Sabin who said that Young’s examination methods were flawed and that the girl’s medical records did not support a diagnosis of sexual abuse. In particular, the affidavit said that the hymenal abnormalities cited by Young had been found in children who were not abused. The affidavit said Young exhibited a “lack of objectivity.”
The motion also included a declaration from Dr. Maggie Bruck, a clinical psychologist. She criticized Mull’s interviewing techniques and said that L. had been asked leading questions and been subjected to suggestive influences during her therapy sessions and doctor’s visits. Bruck said Mull’s use of anatomically correct dolls could render false positives, as there was no consistent evidence that “abused” children played with the dolls differently than other children.
Bruck said L.’s initial disclosure of alleged abuse was the product of “a highly coercive interview with Mrs. Gorham ... laden with threats where Mrs. Gorham blamed her 7-year old child for her lack of mental, physical, or financial resources.”
Bruck wrote, “In my expert opinion, [L.’s] testimony is characterized by so many poor investigative techniques as to render the reports unreliable. Their reports appear to be products of coercive and pressurized interview techniques conducted over a period of 18 months.”
A judge in Marion County Circuit Court affirmed the conviction, and Gorham appealed. On April 14, 1999, the Oregon Court of Appeals agreed with the trial court, which had said that the failure by Gorham’s attorney to present this evidence wouldn’t have mattered. “Even if petitioner had successfully introduced expert testimony from a physician that some of the medical findings were similar to those of non-abused children, and from a psychologist that children are easily led to fabricate allegations of sexual abuse, there is little likelihood that such evidence would have affected the verdict,” the appellate court said.
Gorham was released from prison on March 23, 2007. In 2009, he married Adams, and they moved back to New York City, where Gorham was born and raised. Gorham took a job as a paralegal. (He had been a corporate attorney early in his varied career.) Because of Gorham’s conviction, he was required to register as a sex offender and comply with numerous restrictions on his daily activities and living arrangements.
New York’s Sex Offender Registration Act has three risk classifications, low, moderate, and high. Gorham was initially classified as a moderate risk, and he sought a downgrade to low risk. A judge from New York County Supreme Court denied his request on November 13, 2009, in part because Gorham had only moved to New York a few months earlier. The judge urged him to reapply in six months.
On September 27, 2010, Gorham reapplied for reclassification. The original judge had retired, and a different judge heard his case. Gorham’s lengthy motion included numerous statements from friends and colleagues that attested to his exemplary conduct and resilience. It also included reports from two health-care professionals that criticized the testimony and techniques used by Young and Mull.
Dr. Jennifer Canter, a board-certified pediatrician and board-certified sub-specialist in child abuse pediatrics, said that Young asked leading and suggestive questions and failed to conduct a proper examination.
She wrote: “Conducting a sexual abuse examination and reporting what are genuinely microscopic findings without the colposcope aid of magnification is analogous to reading a book wearing someone else’s glasses—the details are not possible to distinguish.”
Elizabeth Reiman, a licensed clinical social worker, said Mull was an inexperienced therapist with a proclivity towards a diagnosis of sexual abuse. She also noted inconsistencies between Mull’s trial testimony and her own session notes. She wrote that her “recollection [at trial] about the details of these play therapy sessions may not have been accurately represented and do not reflect what actually occurred in [L.’s] sessions.”
She wrote in a letter dated September 1, 2010: “It is my opinion then and now that this child was subjected to coercive egregious conditions that were associated with her allegations. In 2010, were the same conditions in evidence, it is highly doubtful that this case would ever have come to court or even have been founded by child protection agencies. This is because there is a general awareness at least among prosecutors that these suggestive interviewing conditions are well known for producing unreliable reports. Over the past 13 years, professionals have become aware of the dangers of the constellation of conditions that forced [L.] to provide unreliable allegations of sexual abuse.”
The petition for reclassification said: “Based upon what we know now regarding how [L.] was interviewed, at a minimum, there is a reasonable likelihood that Mr. Gorham was wrongfully convicted. As both Ms. Reiman and Dr. Canter report, Dr. Young, Ms. Mull, and [L.’s] mother used these techniques when they questioned [L.]. Furthermore, Mr. Gorham, an African-American man, was married to Ginger, a white woman who testified against him. He was tried in Lane County, Oregon by a jury which was all white. According to the 1990 Census, the Lane area of Oregon had a population of 282,912—269,798 (95.36%) of whom were white and 2,107 (. 7%) of whom were African-American.”
Justice Juan Merchan of New York County Supreme Court approved a downward modification of Gorham’s risk-assessment on October 17, 2010.
In 2020, in Ramos v. Louisiana, the United States Supreme Court struck down the use of non-unanimous verdicts, which were still in use only in Oregon and Louisiana. But the ruling only applied to future cases and those still on direct appeal. The court ruling left it to the states to determine whether to apply the ruling retroactively. Two years later, on December 30, 2022, the Oregon Supreme Court extended post-conviction relief to all old convictions tainted by non-unanimous verdicts.
On May 2, 2023, a judge in Oregon vacated Gorham’s convictions. On May 25, 2023, the state moved to dismiss the charges. An assistant prosecutor said in the motion: “I have consulted with the sole victim of the crimes listed in the indictment. Given the passage of time and the defendant’s complete service of the previously-imposed sentence of imprisonment, she does not wish a re-trial of this case on the merits.”
A judge dismissed the case on May 26, 2023.
Gorham, who had spent nearly 14 years in prison and an additional 15 years as a registered sex offender, filed a claim for compensation from the state of Oregon on November 15, 2023.
– Ken Otterbourg
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