Psychological Evaluation of an Alleged Sexual Abuse Victim by the Defense

Ralph Underwager and Hollida Wakefield*

ABSTRACT: A psychological evaluation of the alleged victim by the defense can be useful and important in cases of child sexual abuse.  A motion for such an evaluation along with the Appellate Court Ruling is presented here.  In this case, the evaluation was conducted and the defendant was acquitted in the criminal trial.
  

Based upon our experience in over 300 cases of accusations of child sexual abuse where we have provided consultation and expert witness services we strongly recommend the defense pursue a psychological evaluation of the children involved in the accusation.  The recommendation and the observations we make are based upon that experience as well as our document review from a large number of other cases where we have not provided expert witness services.

In most instances an accusation of child sexual abuse causes an immediate separation of the child and the accused.  The child is under the control of parent(s) and the state operating through child protection services, law enforcement, and the County District Attorney's office.  Usually the child is interrogated, evaluated, and then treated by social workers, psychologists, or psychiatrists.  Often there is an interview and a physical examination by a physician.  Parent(s) are heavily involved in this process and often are present in sessions between the child and other adults.  Parent(s) give a history of behaviors by the child which may support the allegations and how they came about.  There may or may not be audio- or videotapes of interviews or therapy sessions.  Ordinarily there will be reports of psychological and/or physical evaluations and some information about any therapy in which the child is placed.  Throughout this process, the accused and the attorney defending against the accusation are most often denied any access to the child.

The stated aim in preventing contact with the child by the accused is to protect the child from any further abuse or possible intimidation by the person accused.  However, when exclusion from contact with the child includes grandparents, other relatives, friends, and even the child's pastor or rabbi, the purpose looks more like protecting the case against the accused than protecting the child.  Through this the child is kept within an environment where everybody may be supporting and reinforcing the maintenance of the accusation.  Two key issues are raised by this process that are vital to the determination of the facts.  The first is the competency and develop-mental level of the child.  The second is the nature and the extent of adult social influence exerted upon the child.

The issue of the child's competency and capacity is seldom considered or evaluated by the state's experts.  From the beginning there is the assumption of competency and the avoidance of assessment that might raise a question about competency.  In several cases, after reviewing documents made available to us, we thought there was a strong possibility that the child was developmentally delayed.  Indeed, when we assessed the intellectual capacity of the child, using standard evaluation procedures, the level of retardation was extremely important in weighing the child's level of competency and vulnerability to social influence.  Conversely, we have had a case where a social worker claimed a four-year-old child's advanced language and verbal level meant she had been taught by her parents to deny the abuse because otherwise she could not have talked as she did.  When we tested the child she proved to be in the superior range of ability, and her apparently advanced language was simply reflecting her superior ability.

The factor of adult social influence upon a child is seldom acknowledged by those who control the child and deny access to the accused.  Two unfortunate consequences of this blind spot are, first, nobody guards against adult influence that may prevent a child from making a reliable account, and, second, it is difficult to find out how much influence has actually gone on.  This lack of information decreases the accuracy of any effort to weigh a child's account.
  

Always Request a Psychological Evaluation

We advise attorneys and accused to request of the court or any other authority a psychological evaluation by an expert the defense has confidence in and has selected.  We have reservations about the possibility of finding a truly neutral, independent expert to conduct what is thought to be an objective examination.  Our reservations are based upon the highly politicized and conflicted nature of the professions involved in evaluating accusations of child sexual abuse.  Attitudes have polarized to the extent that it is difficult to be neutral and fair.  One side or the other will attempt to influence, criticize, attack and seek to demean anyone who does not agree with' their position.  We have chosen as a society to deal with accusations of child sexual abuse within our adversarial system of justice.  For better or worse, that is where we are.  We think it is likely to produce the fairest and most objective results to be open about the adversarial relationship, work within it in a responsible fashion, and avoid the illusion of thinking a truly neutral and objective evaluation is possible when it may not be.

The state or individual who controls access to the child usually does everything possible to prevent a psychological evaluation by the other side.  The arguments advanced for refusing are that it will hurt the child, that it is unnecessary or irrelevant, and that the defense expert or the accused may intimidate or threaten the child.  There is no scientific evidence to support any of these assertions.

In every instance where we have evaluated children, the therapists, social workers, or attorneys have claimed it would damage the child.  All of the evaluations have been taped and there is no evidence of any damage.  In all cases but one, somewhere in the process the child's behavior includes affection and openness or the children say they like the evaluator, they are having fun, or they want to come back and are sorry to leave.  When evaluating a series of eight children, the therapist for all eight had written the judge saying the children were frightened and needed to bring a large stuffed dog from her office as a symbol of security and safety.  Shortly after beginning the first session with an eight-year-old boy, who responded well to our approach of giving him some power in the situation, the boy looked at the dog, said, "I don't need that," threw it to the side, and continued happily for the rest of the session.  No other child retrieved the dog from the corner.

The necessity and relevance of an evaluation are dealt with in the briefs that follow.  It is stretching credulity to present a competent psychologist as so devious or psychopathic that there would be a malicious or deliberate effort to intimidate or coerce a child.  Taping the process also gives assurance that such foolish behavior will not happen.  We include the brief prepared by a defense attorney for a psychological evaluation by us.  The trial judge granted it.  The state appealed.  The Appellate Court upheld the discretion of the trial judge but mandated that the evaluation must not be in the nature of a deposition and ordered the trial judge to impose limits.  Following the Appellate ruling, the limits set by the trial judge were that the sessions could not exceed three hours, they must be videotaped, the mother's attorney must be present at all times, the child must not be questioned as if it were a cross examination, and the father would be permitted ten minutes to be observed interacting with the children.

STATE OF MINNESOTA 
COUNTY OF RAMSEY

State of Minnesota,
                      
Plaintiff,

vs

John Doe,
                 
DEFENDANT.

     )
     )
     )
     )
     )
     )
     )
     )
     )
     )

DISTRICT COURT
SECOND JUDICIAL DISTRICT






C. A. File No.: XXXXX
D. C. File No.: ZZZZZZZ

ADDITIONAL DISCOVERY REQUESTS

TO:   The above-named Court and the Assistant County Attorney of Ramsey County.

PLEASE BE INFORMED THAT the above-named DEFENDANT, by his attorney, requests the following discovery:

1.  Independent Psychological Examination

The defendant hereby moves the Court for an order granting an independent psychological examination to be performed by Dr. Ralph Underwager, at the Institute for Psychological Therapies.  Said motion is based upon the following:

a. No psychological harm to the child will occur as a result of said examination.
b. The psychological evaluation will aid the Court in the determination of competency.   It will aid the Court in determining whether the memory of the child is true or implanted by suggestion.
c. The State has indicated in its answer to the defendant's request for disclosure that it may offer evidence of "child abuse syndrome."  Child abuse syndrome is based upon the subjective interpretations of a child's behavior.  To allow a psychologist to give expert opinion without the ability of an independent psychological examination by the defense will mean that only the State will be allowed to put on "scientific" testimony.
d. This is a case in which there is scant evidence and therefore the testimony of the alleged victims will be crucial:
i. No physical evidence.
ii. Recantation occurred without any contact with the defendant, the defendant's family, or the defendant's agents.
iii. All of this occurring during the time of a divorce and child custody dispute which raises automatic questions of implanting thoughts by one parent against the other.  Child sex allegations during custody disputes have been found in psychological studies to have the highest percentage of false claims.
e. The defense simply cannot trust the State to divulge all information.

The State has indicated in its answer to the defendant's discovery requests that: "The State will disclose all notes of John Olson, Dr. Jean Adams, and Dr. Carolyn Stearns that are acquired by the State or its agents or materials expected to be relied as a basis for expert testimony."

Neither the State nor the psychologist have proven to be reliable conveyors of information relevant to the defense.  The State now knows that there has been recanted testimony by virtue of the prosecutor's notes from a telephone conversation with Dr. Adams.  It is important to note that the defense only received these notes upon specific request for them and that Dr. Adams's report did not indicate any recantation by the alleged victims.  Furthermore, it is clear from the State's answer quoted above that it will not hand over all notes by the doctors nor seek to obtain all notes by the doctors for fear that it might have to hand them over.  Instead, it will only hand over those notes that they have "acquired" already and that the doctor "expects to rely upon as a basis for their testimony."  That means that if a doctor does not expect to rely upon the fact that a child recanted his testimony, it would not tell the defense about that recantation and it would thus be hidden.

f. The defense further bases its motion upon testimony adduced at the hearing and briefs to follow said hearing.

2. The defense hereby gives notice of motion and motion that it will ask for jury instruction indicating that the State objected to an adverse or independent psychological examination and the Court refused to order said examination and it is for that reason that the defense has not put on any expert testimony as to the observed behavior of the children.

3. If the Court refuses to order an independent examination by Dr. Underwager, the defense herein moves to have the results of the polygraph examination of the defendant admitted into evidence.  The defense bases this motion upon the fact that the polygraph examination was:

a. Performed at the State's request.
b. Performed by the State's own polygraph examiner of his choice.
c. This examination would simply be used as expert opinion [to] contradict the State's expert opinion as to guilt.  While the psychologist[s] will not be able to testify as to the guilt or innocence of the defendant, their opinions will, in effect, indicate whether or not they believe the defendant to be guilty or innocent.  It would be unfair to have this type of expert "scientific" opinion without the defense's ability to contradict it with the State's own tests of the defendant.

4. The defense hereby moves for authorizations allowing the defendant's and Dr. Underwager's Institute of Psychological Therapies to interview all individuals who have interviewed the children in question.  Said authorization should specifically waive any physician/patient privilege or psychologist/ psychiatrist privilege.  It has come to the attention of the defense that Dr. Adams will still refuse to transfer information to the defense without a court order.  The defense herein specifically requests a court order as follows:

a.

Ordering that all notes, reports, test results, statements, and other information in the files of Dr. Adams, Dr. Olson, and Dr. Stearns be made available for the defense for review, copying, and reproduction.

b. That Dr. Olson, Dr. Adams, and Dr. Stearns also make themselves available for interview by Dr. Underwager or psychologist Hollida Wakefield.
c. That the requests for information in this subsection shall include any and all contact with or concerning the alleged children. This includes contact regarding this event as well as contact with regard to two prior allegations of sexual abuse made against two other individuals in the past, as well as any psychological, medical, therapeutic, or psychiatric information on these children.
d. That if the experts of the State refuse to hand over the ordered material to the defense, that their testimony be refused by the Court at trial.

5. The defendant hereby moves the Court for all notes and records held by psychologists and psychiatrists concerning Ms. Jane Doe, the natural mother of the children in question.  The defense bases this request upon the fact that the mother has been going through therapy for many years, and that she is involved in a difficult and vindictive child custody fight at this time with the defendant.  It is the expert opinion of many psychologists (defendant will put psychological testimony on at the hearing on this matter) that the psychological balance of the mother will contribute to the memory or false memory of the child.  If the mother has a certain personality type, there is a high likelihood that she will have implanted, by suggestion or otherwise, the false accusations into the mind[s] of the children.

Dated: February 10, 1988

Respectfully submitted,

 

Alan D. Margoles

Attorney for the Defendant

MINNESOTA
IN COURT OF APPEALS
C-XX-ZZZ

 

Ramsey County
  
Thoreen, Judge

State of Minnesota

                     Appellant,

 

Hubert H. Humphrey, Ill
Attorney General

Tom Foley
Ramsey County Attorney

vs.
  
John Doe,

                 
Respondent

Alan D. Margoles
St. Paul, Minnesota

Filed July 26, 1988
Office of Appellate Courts

SYLLABUS

1. The trial court did not abuse its discretion in ordering adverse psychological examinations of the children, alleged victims of sexual abuse.

2. The trial court abused its discretion in failing to place restrictions on adverse psychological examinations of alleged victims of child sexual abuse.

3. The "critical impact" standard does not apply to this prosecution appeal of a pretrial discovery order.

Affirmed and remanded.

Heard, considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Thoreen, Judge.

OPINION

THOREEN, Judge

This appeal is from a pretrial order for psychological examination of two of the children of respondent John Doe.  The children are the alleged victims of sexual abuse by Doe.  The examination is to be conducted by respondent's expert witness.  We affirm and remand for restrictions on the examination.

FACTS

Respondent John Doe is charged with four counts of second degree criminal sexual conduct against his daughters, C. D., age six, and T. D., age four.  The acts of sexual contact are alleged to have occurred between July 1 and October 31 of 1987.

The children, who were involved in two earlier reports of sexual abuse in 1983 and 1985, reported abuse by their father in a therapy session in October21, 1987, with their brother's therapist, Dr. John Olson.  The girls saw a therapist, Dr. Jean Adams, on October 26, 1987, and were referred to Dr. Anna Stearns for an examination, which took place November 18, 1987.  At each of these sessions they made statements detailing sexual abuse by their father and a John Smith, an employee of Doe's who was staying at his house.

Doe's wife, Jane Doe, lives with the children next door to Doe in the other half of their duplex.  According to the family court file they were separated in July, 1987, with Doe enjoying visitation until the sexual abuse charges surfaced in October 1987.  The complaint was filed on January 11 prohibiting any contact with the children.

Doe sought a court order for an independent psychological examination to be conducted by Dr. Ralph Underwager.  A hearing was held on the motion at which Dr. Underwager testified, as well as the children's family court guardian ad litem.

The guardian ad litem, Deborah Smith, testified she believed an independent psychological examination would not harm the children.  She was a volunteer guardian, working on her second case.  She had interviewed the children and watched them interact with each of the parents.  She had talked with Dr. Underwager and his colleague, Hollida Wakefield, and had read their book, Accusations of Child Sexual Abuse.  She has no training in psychology and does not know how extensive an examination would be.

Dr. Underwager expressed disagreement with the evaluation techniques of Drs. Adams and Stearns.  He criticized their evaluations as assuming from an early stage that sexual abuse had occurred.  He testified that an interviewer can exert a strong influence on children, giving positive reinforcement of statements of sexual abuse and negative reinforcement through the removal of the "noxious stimulus" of repeated questions on that subject.  Dr. Underwager advocated a technique of "free recall," allowing children to produce statements with minimum adult social pressure.

Dr. Underwager identified several "indicators," present in this case, showing the need for a independent psychological examination: 1) no physical evidence of abuse; 2) no fear of the alleged perpetrator; 3) allegations surfacing in the midst of a bitter custody battle; and 4) recantations by the children.  He also cited indications from the previous sexual abuse reports that the mother, Jane Doe, is obsessed with the possibility of sexual abuse.  Dr. Underwager also cited, from the videotaped interviews by Drs. Adams and Stearns and from their reports, "very overt and repeated indication of adult social influence."  He testified Dr. Stearns used leading questions and repeated questioning to elicit statements of sexual abuse.  He also testified the girls' continuing therapy with Dr. Adams was reinforcing a belief that abuse occurred and could destroy any memory the children had of the real event.

Dr. Underwager testified an independent examination could help sort out learned and suggested memory from real memory.  He stated such an examination would require three separate interviews for each child, a one-on-one interview and an interactive interview with each parent.  He estimated the total interview time at four or five hours.

Dr. Underwager testified children up to the age of ten are generally not competent to testify because they cannot think abstractly, and therefore cannot deal with the concept of truth.  He also testified there was no evidence of harm from interactive interviews involving the parents.

The file includes some information concerning previous charges of sexual abuse of the children, a 1985 charge of sexual abuse by a babysitter and possible abuse by Doe's brother-in-law in 1983.  A summary of the investigation states:

Dr. Stearns felt [C.D.] had a "strong imagination" and was not able to confirm the Does suspicion of sexual abuse.  During the current investigation *** , we had the feeling that the Does are are overly concerned about possible sexual abuse.  Mrs. Doe questions her children weekly about, "has anyone touched you?"  If their behavior is at all questionable, she suspects sexual abuse.  Mr. Doe made a statement to us on 1-7-86, that [T. D.] has even accused him of touching her.

The State opposed the motion, without presenting testimony.  A psychological evaluation, by Dr. Adams, showed C. D. to have superior intelligence, and to be verbally fluent despite brief absence seizures.  The evaluation indicated T. D. has above average intelligence.

The court granted the request for an independent examination without findings or restrictions on the scope of the examination.  A motion to discontinue the children's therapy with Dr. Adams was denied.
  

ISSUES
  

1. Did the trial court abuse its discretion in ordering the examinations?
2. Must the State show allowing the examinations will have a "critical impact" on the trial?
  

ANALYSIS
  

The State contends it was an abuse of discretion to order an adverse psychological examination.  Cf. State v. Holmes, 374 N.W. 2d 457, 460 (Minn. Ct. App. 1985), pet. for rev. denied (Minn. Nov. 26, 1985) (no abuse of discretion in denying adverse psychological evaluation of victim); State v. Sullivan, 3260 NW. 2d 418, 423 (Minn Ct. App. 1985), pet. for rev. denied (Minn. Apr.12, 1985) (decision to order examination to determine child's competency was within trial court's discretion).  Doe argues the examination would not harm the children, and would provide information helpful to a determination of competency and to the factfinder's assessment of the weight and credibility of their statements.  Doe contends parts of the State's brief, concerning the adverse nature and possible harm from the examinations, should be stricken.  However, these statements can be considered as argument, rather than factual assertion.  Case law supports a concern about possible harassment of, or harm to, victims through adverse examinations.  See, e.g., Holmes, 374 N.W. 2d at 459 (gynecological exam of child sexual abuse victim).

This court has reversed an order allowing the deposition of a witness in a criminal prosecution.  City of Bemidji v. Harr, 368 N.W. 2d 359,360 (Minn Ct. App. 1985).  We have reversed an order allowing an adverse physical examination of a child sexual abuse victim.  State v. Garrett, 384 N.W. 2d 617, 619 (Minn. Ct. App. 1986), pet. for rev. denied (Minn. May 29,1986). No error was found in denying a psychological examination.  Sullivan, 360 N.W. 2d at 423; see also Potter v. State, 410 N.W. 2d 364, 369 (Minn. Ct. App. 1987) (denying post-conviction psychological examination).  We have found no authority stating it is beyond the trial court's discretion to order an adverse psychological examination.  Courts in other jurisdictions have allowed such an examination upon showing of "compelling reasons" or upon a "substantial showing of need." State v. Buckley, 325 NW. 2d 169, 171 (N.D. 1982); State v. Logue, 372 N.W. 2d 151, 155 (S.D. 1985).

We conclude the trial court did not abuse its discretion in ordering the examination.  The facts that may justify an adverse psychological evaluation in this case are the prior allegations of abuse, viewed with suspicion by child welfare workers, and the mother's perceived "obsession" with sexual abuse.  Parental influence is suggested in the reports, but it may be difficult for a defense expert to probe such influence based on the reports alone.

We do not attempt to formulate a standard allowing adverse psychological examinations of child sexual abuse victims.  Some of the reasons advance in this case, however, must be rejected as insufficient.  The fact the children have at times recanted is not sufficient grounds for an examination, since it is a frequent characteristic of child abuse victims.  See State v. Myers, 359 N.W. 2d 604, 601 (Minn. 1984).  Similarly, a lack of fear of the perpetrator, especially the child's own parent, is not uncommon.  See id. (child confused by caretaker or parental abuse, unsure of the criminality of the conduct). Also, a child may allege abuse during a custody dispute because this is the first period of separation from the abuser. See State v. Garden, 404 N.W. 2d 912, 914 (Minn. Ct. App 1987) pet. for rev. denied (Minn. June 25, 1987).  Finally, allegedly suggestive interviewing methods do not by themselves justify an adverse examination. Cf. State v. Carver, 380 N.W. 2d 821, 826 (Minn. Ct. App. 1986), pet.for rev. denied (Minn. Mar. 27,1986) (children's hearsay statements to doctor not sufficiently reliable where children interviewed together and asked leading questions).

We note that, although Doe attempts to characterize the requested examination as a competency examination, he does not challenge the intelligence testing showing the children as very intelligent.  The tests, along with the interview report, would seem to indicate the oldest child at least would be competent to testify.  Moreover, Dr. Underwager's testimony inferring children under the age of 10 are generally not competent because they cannot deal with the abstract concept of truth, is contrary to the statute.  See Minn. Stat. 595.02, subd. 1(f) (1986) (child under 10 is competent unless court find otherwise).

Dr. Underwager in his testimony expressed a strong disagreement with the interviewing techniques of the State's experts, Drs. Adams and Stearns.  His view is the children's allegations were made under adult influence, reinforced by interviewing techniques and by continuing therapy.  See State v. Lau, 409 N.W. 2d 275, 276-77 (Minn. Ct. App. 1987) (Dr. Underwager testified five-year-old was unable to relate truthfully what occurred due to inability to understand abstract concepts, use of leading questions and other poor interviewing techniques, and prior learning about sexual abuse).  Despite his concern about suggestive and reinforcing methods by the State experts, Dr. Underwager proposed to interview the children only by nonintrusive, "free-recall" method of evaluation.  It is unclear how such an examination could "Produce a maximum reliable statement," on whether abuse occurred, as the defense proposes, without an attempt to remove the suggestions and reinforcements previously implanted, according to Dr. Underwager.

The trial court has the authority to regulate discovery in a criminal case by restrictions of time, place, and manner.  Minn. R. Crim. P. 9.03, subd. 3.  The trial court here abused its discretion in imposing no restrictions on a matter as delicate as adverse psychological examination of child sexual abuse victims, given this strong disagreement over methodology.  The order would in effect allow the defense expert to depose the children, challenging their reports of abuse and the influence of their therapist.  Cf. Harr, 368 N.W. 2d at 360 (criminal rules do not allow deposition of witness in criminal case except for unavailability).

The examiner should be limited to nonintrusive examination which does not approach the scope of a deposition.  The examiner should not be permitted to attack the interviewing techniques of the State's experts through the children.  In light of the previous no-contact order, the court should specifically review whether the interactive interview involving Doe should be allowed.
  

II.

Doe argues this appeal should be dismissed because the State has not shown the order allowing the adverse examinations will have a critical impact on the outcome of the trial.  See State v. Joon Kyu Kim, 398 N.W. 2d 544, 550-51 (Minn. 1987).  The Supreme Court has discussed the "critical impact" standard as one applying to appeals from orders suppressing evidence.  See id.; State v. Webber, 262 N.W. 2d 157, 159 (Minn. 1977).  The "critical impact" standard for prosecution appeals from pretrial suppression orders.  See Webber, 262 N.W. 2d at 159 (citing repealed section 632.12).  Under the former statute, a discovery order was not among pretrial orders listed as repealable.  Minn. Stat. 632.11(1974) (repealed).  The rules now make all pretrial orders except dismissals for lack of probable cause, appealable by the State.  Minn. R. Crim. P. 28.04, subd. 1(1).  Thus we find no indication the "critical impact" standard was meant to apply to discovery orders.  See Harr, 368 N.W. 2d at 360 ("critical impact" standard does not apply to prosecution appeal of discovery order).
  

DECISION

The trial court did not abuse its discretion in ordering adverse psychological examinations.  Failure to place any restrictions on the examinations was an abuse of discretion, and the case is remanded for protective order.

Affirmed and remanded.

John F. Thoreen (signature)
July 15, 1988

Conclusion

The psychological evaluations were conducted under the limits imposed by the trial judge.  They were videotaped and copies of the videotapes were delivered to the prosecutor.  We testified in the criminal trial, in part, on the basis of the evaluation.  A rebuttal witness brought in by the state commented upon the videotapes of our sessions with the children.  She said she saw the relationship with the children as warm and friendly.  The only criticism she made was that she thought we should have repeated some of the psychological tests given to the children about six months earlier.  In cross examination she accepted and agreed with the testimony we had given based upon the evaluation.

The jury acquitted the accused after two hours of deliberation.

* Ralph Underwager is a licensed consulting psychologist and Hollida Wakefield is a licensed psychologist at the Institute for Psychological Therapies, 2344 Nicollet Avenue South, Suite 170, Minneapolis, Minnesota 55404.  [Back]

[Back to Volume 1, Number 2]  [Other Articles by these Authors]

 
Copyright 1989-2014 by the Institute for Psychological Therapies.
This website last revised on April 15, 2014.
Found a non-working link?  Please notify the Webmaster.