by Sue Miller
“I’m self-employed.”
“You have no job, is that not the case?”
“I’m a painter. An artist. I paint. I sell paintings.”
“But you are not currently working at a job, are you?”
“Not in that sense, no.”
“Just no is sufficient, Mr. Cutter. And when is the last time you had a job, in that sense?”
“I taught a course last spring, at the museum school.”
“And before that?”
“The year before, I was an artist-in-residence at a high school north of Boston.”
“So, Mr. Cutter, it’s fair to say that you live a fairly unstable life, economically.”
“Yes, that is fair.”
“So that moving in with Mrs. Dunlap represented a good deal for you, didn’t it.”
“I never moved in.”
“But you slept there every night, isn’t that a fact?”
“Yes.”
“Had your meals there?”
“Usually.”
“But you didn’t move in.”
“No.”
Fine looked up at the judge and smiled. “We won’t quibble over this one, your honor.” He turned back to Leo again, walked slowly past him, talking. “Now, tell me, Mr. Cutter, you took care of Molly, my client’s daughter, from time to time, didn’t you?”
“Yes.”
“Mrs. Dunlap left you alone with her?”
“Yes.”
“Let you bathe the child and put her to bed?”
“Yes.”
Fine turned, faced Leo. “And it was on one of those occasions that you were naked in front of the child, was it not?”
“Yes.”
“When there was no one else around?”
“That’s right.” Leo’s voice was neutral.
“You told the child to touch your genitals, did you not?”
“No, I didn’t.”
“You did not tell the child to touch you?” Fine leaned towards Leo.
“No, she asked if she could.”
“The child asked if she could touch you sexually?”
“Yes. No! Not sexually.” Leo’s hands came up, gripped the railing.
“She asked if she could touch your genitals,” Fine said slowly.
“Yes.”
“A four-year-old child spontaneously requests to fondle a grown—”
“She was curious!” Leo burst out. I could tell he was near the edge. Don’t, I thought. Just a little more. Just a little worse.
“So you—of course, who wouldn’t?” Fine shrugged cavalierly—“you said ‘yes.’”
“That’s right.” Leo had quieted.
“Sure, great, go ahead!”
“I said yes,” Leo said dully.
“And when she touched you, Mr. Cutter, is it not the case that you responded sexually to her touch?”
“Yes.” Leo looked down.
“That you were aroused by her?”
“No.”
“You responded, but you were not aroused?”
“Yes.”
Fine smiled at the judge. “Another nice distinction, your honor.”
Muth stood up. “Objection,” he said. “The witness has answered. Counsel doesn’t need to comment on the answer.”
“Sustained,” the judge said, but he smiled at Fine.
Fine turned back to Leo. “You got an erection when my client’s little girl touched you.”
Muth stood again. “Objection, your honor. He’s already answered this.”
The judge nodded. “Sustained,” he said again.
Fine turned and smiled slightly at Muth. Then back to Leo. “O.K., let’s talk about something else, Mr. Cutter. On multiple occasions, you and Mrs. Dunlap had the child in bed with you, didn’t you?”
“Yes.”
“You would both be naked, and the child would be in bed with you?”
“Neither of us wore pajamas.” Leo spoke quickly, angrily. “If the ch . . . if Molly got into bed with us, that was the situation, yes, but we never took her to bed with us naked.”
“Thank you, Mr. Cutter, thank you for the explanation. And when you happened to end up, two naked adults and a four-year-old child, in the same bed—on any of those occasions, Mr. Cutter, were you and Mrs. Dunlap actually having intercourse?”
“Yes. Once.” Leo’s voice was nearly lost.
Brian spun sideways in his chair. The judge looked over at him, then quickly, back to Leo.
“So you were making love while Molly was in the bed with you?”
“She was asleep.”
Fine turned his back to Leo and the judge, spoke contemptuously over his shoulder. “I have no further questions, your honor.”
There was a long silence in the room. The shade ticked against the window. A distant phone rang. “Mr. Muth?” the judge said finally.
Muth stood up. “No,” he said. “I have no questions, your honor.” And sat down. Leo looked at him, at me. I touched Muth’s arm lightly, but he looked down at his papers, made no response.
“You may step down,” the judge said to Leo. Leo looked at him for several seconds before he understood what had happened. Slowly he got up.
Leo didn’t show up in court the next day.
I wasn’t surprised. I’d called him after I’d gotten home the night before, and then, because he sounded so upset, I’d gone over to his studio.
He was drinking. He was enraged at Muth for “cutting him loose,” as he called it. “I mean, Jesus, Anna, if he was going to do that, he could have told me. That’s all I mind. He implied I’d get a chance to tell the story my way, so I was a good little boy for the cross-examination, and then he pretended not to fucking know me.”
“He was just trying to help me, Leo.”
“Anna, I’ll do anything to help you, to help him help you. I told you that. If he doesn’t want to talk to me in court, great. But he should have told me. That’s all. He should have fucking told me.”
“He probably thought you’d perform better, if . . .”
“I know what he thought! He was wrong to do it the way he did.” We sat in silence at his table, not looking at each other. Leo got up and started pacing around the room.
“Maybe I should go,” I said.
“Whatever,” he agreed. He was standing at his worktable, his back to me.
But I just sat at the table.
After a while, Peter came over.
Leo told him what had happened, repeated his objections to the way Muth had dealt with him. Peter agreed. He told Leo that Muth sounded like a colossal asshole, a mind-boggling asshole. For a while, Peter really enjoyed talking about it. But then we started to bring him down, he said. “Jeez, I wanted some company tonight,” he complained. “I can live without this.” He gestured at Leo and me.
“Go fuck yourself, Pete,” Leo said. He was sitting on the mattress now, the drink in his hand.
“After you,” said Peter.
“I mean it,” Leo said. No one spoke for a while.
“Well,” Peter said. “I got to admit it. I just can’t keep up with a pace like this for very long.” He pushed himself up from the room’s only comfortable chair. “Thanks for the stimulation, guys. I gotta go.”
“Me too,” I said.
Leo looked up at me.
“I’ve got to do it again tomorrow, Leo,” I said. “I’m going to have to talk. And I trust Muth. I’ve got to trust him.” I shook my head. “I really can’t stay with you when you’re feeling this way.”
He looked back down, nodded.
I squatted by him. “We can’t talk tonight anyway.” I touched his face. “Can we?”
He shook his head.
“I’m sorry,” I said.
“I’m sorry too,” he answered. We squeezed hands. I left with Peter, and didn’t look back. I didn’t want to see him there alone.
Outside, Peter tried to persuade me to go dancing. I eased away from him, got into my car. “You’ll be sorry, A
nna,” he shouted to my closed window. “Dancing. It’s the very thing for what ails you.” As I drove away, he was tapping across the sidewalk to his patchwork Volvo.
When I stepped behind the paling the next day, I was already trembling. Like Leo, I’d worn a costume—the old dress I’d put on the night I imagined I could still talk to Brian.
Muth grinned across the railing at me, then led me at a leisurely pace through the opening questions, the story he wanted to establish. He particularly dwelt on the amount of responsibility I’d always had for Molly’s care: that I had had contact with doctors, teachers, parents of friends. That I had made the arrangements, accompanied her on trips to the aquarium, the children’s museum. That I had selected babysitters, chosen the day-care center. That I had purchased Molly’s clothes, planned her meals. That when she was disturbed in the night, I was the one to go to her. As we slowly talked about these details of my life with Molly, I began to relax. I sat back, as Brian had done, and tried to look as comfortable as he had.
Muth had been facing me and the judge all this time. Now he turned out to the courtroom. “Now, Mrs. Dunlap,” he said. “Tell me the history of your relationship with Leonard Cutter. When did you first meet?”
“We met sometime in April.”
“And you began going out in . . . ?”
“We started dating, we became lovers, in May. And Mr. Cutter would often spend the night, starting in June, really.”
“And on some of those nights, did Molly sleep with you?”
“Yes, she did. She sometimes had nightmares, or bad dreams—I think lots of kids really start to at her age—and when she’d wake up with them, she’d often come down the hall to my bedroom and climb into bed with me. With us.”
“So she’d sleep in the bed with you, as any child does under those circumstances?”
“Well, if I were alert enough, I’d carry her back to her bed. But occasionally, I let her stay and she’d fall asleep next to me, yes.”
“Describe that arrangement to us.”
“The sleeping arrangement?”
“Yes.”
“Well, Molly would be on the edge, the side closest to the door, where she’d come in, and I’d be in the middle, and then Leo—Mr. Cutter—would be on his side of the bed.”
“Now, Mrs. Dunlap, tell us how Molly related to Leo.”
“Oh, she adored him. He’d worked very hard to gain her affection. He was very reassuring, very steady with her. She enjoyed being with him.” Below me, Brian shook his head slowly in disgust. I tried not to look at him.
“And from time to time, did you leave her alone with him?”
“Yes. Sometimes just to dash out and get groceries, but occasionally for longer. Once or twice so I could catch up on my work in the evenings. And sometimes they chose to spend time together—she’d ask him to take her somewhere, to the beach or something.”
“Now, Mrs. Dunlap, what was your response when you heard of this incident that’s been referred to, where there was contact between Mr. Cutter and your daughter?”
“I was shocked really. I was appalled.” This was the answer we’d agreed on. I was glad Leo wasn’t in the courtroom. I said it softly.
“And did you express that opinion to Mr. Cutter?”
“Well, I didn’t find out about it until afterwards, but at the time I learned of it, yes, I expressed my dismay.”
“You let Mr. Cutter know that you didn’t condone such behavior?”
“Yes.”
“Do you recall the words you used?”
I remembered lying silently a long time next to Leo in the half-dark after he’d explained it to me. The light’s purple glow made everything ugly. I didn’t remember saying anything. I had been crying.
“No. Just that it was bad, that I didn’t understand how he could have thought it was all right.”
Muth nodded soberly, approvingly. “Now, Mrs. Dunlap,” he said, “I know that at various points in investigating this situation, various people have asked you about whether you’d be willing to give Mr. Cutter up if that were a condition of custody. The family service officer and Dr. Payne, the guardian, have asked you. What has your response been to that?”
“That I would be willing. I’d be willing not to see Mr. Cutter again.”
“O.K.,” Muth said. He smiled gently at me, looked at the judge. “That’s all.”
Mr. Fine paced in front of me slowly for a moment before he began. I avoided his dark, bright eyes. He paused, spoke directly to me. “Now, Mrs. Dunlap, is is true that on at least one of the occasions when Molly came down the hall and got into bed with you, you had intercourse with Mr. Cutter while she was in that bed?”
“We were having intercourse when she came in, yes.”
“And you continued to do so, isn’t that the case?”
“Mr. Cutter stayed inside me.”
“Which is what we define, I think, as intercourse. It will do for me anyway.” There was muted laughter here and there in the room, and Mr. Fine’s lips curled slightly, as though to acknowledge it. Then his face sobered, he frowned at me. “So that you, who so properly object to Mr. Cutter’s having allowed your little girl to touch him, you yourself allowed her to be in bed with you while you were having intercourse, isn’t that so?”
“Yes.” I tried to keep my voice firm, steady.
“Do you feel there’s some qualitative difference between these two, modes of behavior, shall we say?”
Muth stood up behind him. “Objection your honor. That calls for a judgment.”
The judge looked over at him. “I think I’d like to hear the witness answer,” he said, frowning.
“I don’t know,” I said, after a moment.
“What?” said Fine sharply.
“I don’t know if there’s a difference.”
“But you do disapprove of what Mr. Cutter did?”
“Yes.”
“Do you disapprove of what you did in letting the child watch you have intercourse?”
“She didn’t watch.”
“Do you disapprove of your own action?” he repeated, as though I were slow-witted.
“Yes, I do,” I said softly.
“You would not do it again.”
“No, I wouldn’t.”
He watched me a moment with his bright eyes. “Tell me, Mrs. Dunlap, at what point did you change your mind?”
“Excuse me?”
“You changed your mind about your behavior, isn’t that the case?”
“No.”
“No? But once you felt it was fine and dandy. Now, apparently, you don’t.”
“I never felt it was fine and dandy.”
“But you did it.”
“Yes.”
“Without feeling it was all right?”
“Yes. I didn’t think. I didn’t think about it.”
“I see,” he said. He walked away, over to his table, looked down at some papers, then walked quickly back. “Now, Mrs. Dunlap,” he said. “Would you describe the number of hours you worked prior to your divorce?”
“Somewhere between ten and fifteen hours a week.”
“Because Mr. Dunlap worked hard, made enough money so that you didn’t have to work all the time, did you?”
“No. Yes, that’s right.”
“And Molly went part-time to this day-care center you’d found.”
“Yes. My piano students were all after school, in the afternoon, and she went to the afternoon program there.”
“And this year you upped her time to full-time.”
“That’s right.”
“Because you’re working more.”
“Yes.”
“Which is how much?”
“Well, over the summer it was thirty hours.”
“And now?”
“And now. Now I have piano students back, it’s forty or so.”
“So when you had custody of Molly, she was at day care forty hours a week.”
“Approximately, yes.”
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“And that would be the schedule if she were to return to your custody?”
“Yes.”
“And do you have anyone to help you in your home, Mrs. Dunlap?”
“No.”
“So you work forty hours a week away from your daughter, and then still have all the work and maintenance involved in the home to do also.”
“Yes.”
“As well as your social life, isn’t that the case?” He smiled slightly again. “Yes.”
“That’s all, your honor.”
Muth got up slowly when the judge called on him, as though there were no urgency, nothing to worry about. His tone was relaxed. “Now Mrs. Dunlap, both the jobs you work at have rather flexible hours, don’t they?” He grinned at me, my friend.
“Yes.”
“And could you tell the court,” he swung his hand out towards Fine and Brian, “what you’d do, what you have done, when Molly is ill, and needs her mother?”
“Well, if she were sick, when she’s been sick, I just cancel everything. Or even occasionally if we just felt like, well, not going to day care that day, having a picnic or something. Not that I could afford to do it often. But I stay with her when she’s ill. Occasionally I still have the piano students come, because I’m right there, down the hall if she needs me. But I can always have someone else take care of the animals at the lab where I work, and just make up the work time later. And that’s part of why I have that job, so I can respond to her, so we can have those times together.”
“Thank you,” he said, and nodded to the judge. “That’s all.”
Doctor Payne looked tiny, bobbing to the witness stand. When he sat back after he’d been sworn in, his face was partially obscured from me by the railing around him. Muth had him recite his credentials too, at great length. He asked him for an account of how many cases he’d testified in, of how many times he’d recommended custody for the mother and how many for the father. He got from him a tedious description of the number of hours he’d spent with each of us and in writing up his report. Then Muth asked him to talk about Molly, about how she’d behaved in her sessions.
Payne smiled. “Well, Molly was, in some ways, a tough cookie.” Then he shook his head, sobered. “But I think all the changes in her life, and her confusion about what’s going to happen now, have made her wary of opening up. And I think she sensed that what she said to me was going to make a difference in terms of where she ended up. But by the second session she’d relaxed some, and I was able to do some play therapy with her, to use dolls and toys to get at what her feelings were. And she became more open. And she’s really quite articulate about what she thinks, once she’s comfortable.”