Appeals court overturns conviction in sodomy, sexual abuse case

FARMINGTON — Thomas J. Montgomery is a free man today partly because of a law that does not recognize licensed professional counselors as professionals who can make diagnoses.

A St. Francois County jury had found the Desloge man guilty of two counts of sodomy and two counts of first-degree sexual abuse. Circuit Court Judge Stan J. Murphy sentenced Montgomery to 24 years in prison.

But the Missouri Court of Appeals overturned the convictions and released him from prison because they found there was insufficient evidence for the guilty verdict on one count of sodomy and that the other charges should be retried because of testimony that the trial judge should not have allowed.

The Appellate Court said Judge Murphy should have sustained the defendant’s objection to a counselor’s testimony that the victim suffered from post-traumatic stress disorder.

The defendant’s attorney had objected on the grounds that the counselor was not professionally qualified to make such a determination.

Only medical doctors practicing psychiatry, licensed psychologists, and licensed social workers are permitted by law to make diagnosis of mental disorders. The practice of professional counseling is not defined to include diagnosis of any sort — only the appraisal or assessment of a person.

Legislators are considering a bill that redefines the practice of professional counseling to include diagnosis, prevention and the establishment of treatment.

A local attorney is urging legislators to support this bill which allows licensed professional counselors to provide more testimony in trial.

Assistant Prosecuting Attorney Patrick King has decided he will do whatever he can on the legislative front to make sure what happened in the Montgomery case doesn’t happen again.

King recently testified before the House Committee on Professional Registration and Licensing and the Senate Committee on Aging, Families and Mental and Public Health.

King spoke to legislators about the Montgomery case. He was the prosecutor who handled this case.

He said after the conviction was overturned, the victim and victim’s family decided they did not want to go through another trial. The victim was 9 years old when the alleged sexual abuse and 16 when the first trial was held.

King said the bill has not made it out of committee yet. Once it is out of committee, it has to be approved by both the House and Senate.

King said he was honored the Missouri Mental Health Counselors Associations asked him to speak to legislators. Besides testifying in front of the committees, King is speaking with local legislators.

He wrote a Letter to the Editor urging State Reps. Kevin Engler, R-Farmington, Dan Ward, D-Bonne Terre, and Sen. Harry Kennedy, D-St. Louis, to vote yes on the bill “to help protect the public.”

He worries more convictions could be thrown out if the law is not changed.

He said counselors had been allowed to testify in a wide variety of cases and no one had ever brought up that issue before.

The counselor in question had seen the victim more than 40 times. He said most children alleging abuse choose to speak to a licensed professional counselor.

King said for 15 years, more than 2,700 counselors have been making diagnoses. Without the law change, expert testimony by counselors may be thrown out along with the decisions made by judges and juries in hundred of cases involving child or child custody cases.

“If it is fixed tomorrow, it is not going to change (the Montgomery case),” he said. “This case is over.”