Defense Considerations in the Child as Witness in Allegations of Sexual Abuse.

Part II. The Child Witness:
Legal Competency

Louis Kiefer*

ABSTRACT: Although the false allegation of child sexual abuse does not always start with a child, the child becomes the key to unlocking the mystery of why the allegations are made, and what validity, if any, should be given.  The following article is published in three parts: Part I deals with how we measure credibility.  Part II deals with the child as a witness.  Part III deals with the anatomical dolls and some general practice tips.

At common law, there was a presumption of competency only of children over the age of 14. In 13 states, a child over the age of 10 is presumed competent.(19)  In some states there is a different age presumption for criminal matters and for civil matters.(20)

The general common law rule on competency is similar to the Federal rule.

The competency of a child offered as a witness involves his mentality and moral maturity, having special regard to the understanding of the nature of the oath and of the consequences of false swearing.  The belief in a Supreme Being and in further punishment for false swearing is neither necessary to, nor conclusive of his competency.  He should be sufficiently mature to receive correct impressions by his senses and to recollect and narrate intelligently.  He must also appreciate the moral and legal duty of a witness to tell the truth.  State V. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945).  See also State V. Piskorski, 177 Conn. 677, 712 (1979).

The Criminal Rule as to Children is, in some states, defined by statute. For example, Connecticut has one that provides:

Sec. 54-86h. Competency of child as witness.  No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification.  The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact." (P.A. 85-587, S2).  Note: competency is different from the obligation to take an oath.  See p.101 et seq, Myers, Child Witness, Law and Practice, John Wiley & Sons publishers (1987).

Now, of course, how can the child victim fall within the exception without proof by competent evidence that the child has been the victim of an assault?  Nevertheless, you can assume that the court will permit all children to testify.  I do not know of any cases in which an appeal has been taken on the constitutionality of this provision.  Even if it is constitutional, it should be a cause of concern.  Please note another provision in the criminal law as to the right of confrontation.(21)

The Federal Rule is more succinctly set forth: "The question of a child's competency depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former." Wheeler v. United States, 159 U.S. 523 (1895).

Because of the aforesaid presumptions, in a civil action, the burden of proof to establish competency is on the proponent of the witness under the age of 14.  That means that you are entitled to a hearing on the issue of the competency.  The hearing may be granted as a preliminary matter, or it may be granted after the child witness is sworn, but you are entitled to a hearing. State v. May, 79 Conn. 315, 316 64 At 833, (1906) 6 year old is competent; Ruocco v. Logiacco, 104 Conn. 585, 590, 134 At 74 (1926)  15 year old is incompetent.

Lying in General: Types of Lies

A lie is defined as: "(1) To make a statement that one knows is false, especially with intent to deceive."(22)

Note the three elements:

(a) A statement.
(b) Known to be false.
(c) With intent to deceive.

Children learn to lie the first time they are punished for telling the truth.  The first lies are simple denials: "Did you do that?"  "No."  As children grow older, they blame others in response to questioning.  As their minds become more sophisticated, so does the lie.  There is some truth in the proposition that young children don't lie if, by that, it is meant they have capacity to invent a false statement with intent to deceive.  There is no empirical data that shows that children lie about everything except sexual abuse.  Experience shows that children do lie.  As a matter of fact, in your cross examination of a person who claims that children never lie, you might ask the following questions: "Did you ever lie as a child?  Did any of your friends ever lie as a child?  At what age did you first observe your friends lie?  What was the lie?"

Even without the creation of a baleful lie, children do engage in make believe, play, fantasy and games of pretend.  The fact that a child does not lie does not mean that the child is telling the truth.  A child may believe in Santa Claus, the Easter Bunny, the sandman, witches, etc., without (a) knowing that they don't exist, and (b) intending to deceive.  Therefore, the issue is not do children sometimes lie, the issue is do children narrate only experienced events?

Analysis of the Connecticut Rule of Witness Competency

There are three essential elements:

" ... mental and moral maturity having special regard to the nature of the oath, the consequences of false swearing ... and the moral and legal duty to tell the truth ..."

"Mature enough to receive correct impressions by his senses."

"The ability to recollect and narrate intelligently." Segerberg, Id.

Capacity for Truthfulness

I am aware of no study of children that would indicate that any child under the age of 10 would have the mental and moral maturity to appreciate the moral and legal duty to tell the truth.  Indeed, all the research indicates just the opposite.  Children do not acquire a character, and appreciation of the duty until ages 10 and 11.  Of course, the rule as stated by the Supreme Court and as applied by the trial court are strangers to each other.  In reviewing the literature, a child as young as five has been qualified to testify. Wheeler, Id.

It would seem that as a preliminary matter, an examination of the child by professionals may be obtained to establish competency.  If the professional is familiar with the literature and is honest, I seriously question whether competency of a young child could properly be found.

A three-year-old normally believes anything that displeases a parent to be a lie.  Thus, swear words are considered to be lies.  Until age five or six they believe that (a) a lie is anything the adult says is a lie,(23) and (b) anything which is incorrect is a lie; for example, two plus two equals five.(24)  Furthermore, to apply this rule, if the child says that he has not been abused and the investigator tells him that that is a lie, the child will adopt that statement to be a lie and the child will learn not to say that "nothing happened" because that would be a lie.

Piaget also found that children, age six, thought a lie was "naughty words," simply bad things to say because parents got angry about them.  Even at age 11, a lie is an untruth with intent to deceive but is still subject to the situational specifics in determining actual behavior.(25)

Jean Piaget indicates that young children do not discriminate between thoughts and things thought of.  They do not remember the origins of their knowledge and mistake memories of dreams for memories of events while awake.  It is not until about the age of 11 or 12 that a child is capable of fully differentiating between internal thoughts and external happenings.(26)

As Wakefield and Underwager point out:

Talking about punishment and using moral concepts as, "Do good girls tell the truth or lie?" does not increase the likelihood of telling the truth.  The known limitation of children's cognitive capacities to be literalistic and concrete interpretations of punishment and reward means such talk increases the probability of children giving answers that they think the adult wants to hear.  It does not assure truth telling.(27)

Furthermore, children view as naughtier that person who accidentally strays far from the truth than the one who deliberately strays slightly.  Because children cannot fathom the reasons or motivations behind someone's statements, they define as a lie any statement that is contrary to observable fact.(27)

Children also tend to believe that a lie which is gotten away with is all right, but a lie that is not believed is not all right.  Take the following lies: Telling your family you got a good mark in school when you weren't called on to recite; or telling, after being frightened by a dog, that he was as big as a horse or a cow.  For young children the first lie is not "naughty" because (1) it often happens that one gets good marks; and (2) "Mama believed it."  The second "lie," however, is very naughty, because nobody ever saw a dog that size.(28)

Children also tend to decide what is a lie, not by the intent to deceive, but by the consequences.  Presenting a young child, aged three to five, with a truthful situation would probably result in the child saying something was a lie.  For example, "If you told your brother it was time to go to school and he left the house and got hit by a car, would that be a lie?"  The young child without a clear understanding of cause and effect, but perceiving that there were spoken words and a bad result, would very likely call that a lie.  Anything that gets an adult angry is a lie.  Another observation of the researchers is that a child would find the slight negligence resulting in bad results more morally serious than an intentional assault with less serious consequences.

Because a young child cannot appreciate the circumstances in which it would be appropriate to lie, i.e. justifiable lying, the child will define something as not a lie rather than indicate it is a lie, but it is all right to lie under certain circumstances.  For example:

"Let's assume you are walking down the street.  You run into a monster and the monster says: 'Where is your friend, Becky Jo?  I want to find her and eat her.'  Now, if you know where she is, will you tell the monster or will you tell the monster that you don't know where she lives?"  Since a child has no philosophical concept of situational ethics, (although the following study indicates that children do operate situationally), the child will most likely define that as not being a lie rather than adopting the sophisticated concept of justifiable lying.

Not only do the studies show that children under the age of 10 have no appreciation for moral duty to tell the truth, they also show that children up to age 14 are more likely to have rules about honesty and lying which are used as they perceive the situation demands.

Hartshorne and May did a study in which eleven thousand children in the fifth through eighth grades were involved (ages 11 to 14).  Moral conduct was studied by giving children opportunities to lie, to cheat, and to steal in different sets of circumstances.  The most surprising discovery, because it was not expected, is that the moral behavior of children is specific to the situation.  There is little support for the concept of some internal entity such as character or moral disposition or general traits of honesty, truthfulness or trustworthiness.  Instead, children respond to the concrete specific situation and give whatever answers of behavior they perceive that the situation demands.  This finding has been replicated and confirmed by numerous investigations.(29)

Qualifying the Child Witness

Someone the judge, the prosecutor, the other attorney will attempt to show that the child is competent as a witness.  The standard questions have no relationship to "the moral and legal duty to tell the truth," but have woven themselves into the repertory of qualifying questions frequently asked.

The questions asked by judges are essentially recognition tasks. "Is my sock red or blue?"  "If I say it is raining outside, is that a truth or a lie?"  "If I say that I am a girl, is that the truth or a lie?"  "If you said that I had a beard, would that be a truth or a lie?"  "You are four years old, right?"  "If you said that you were 12, would that be true?"  The difficulty is that correct answers to such questions do not reveal anything about a child's conception of truth or lie or the competency to assess what is truthful or false about a complex event which is supposed to have occurred in the past.  They simply test the accuracy of observations of the child and the child's perception of the immediate environmental situation of being expected to provide the answers desired.(30)

You, of course, will have an opportunity to voir dire the child on the issue of competency.  You may anticipate that the child will have already testified that "It is wrong to tell a lie, and that if you tell a lie you will be punished."

This provides an opportunity to ask the child about how much witness preparation has been undertaken.  Where did the child learn that?  Has the child ever lied?  When?  Where?  Why?  What happened?  Did they ever lie and not get caught?  So, they don't always get punished if they lie?  But didn't you just say you do ...?  Does a child really know how a judge would "punish" them, do they understand the concept of jail?  Have they ever seen one, been to one, do they know anyone who has been to jail?  Have you been told that your father is going to go to jail for what he did to you?  What does that mean to you?  Have you been told that you will go to jall if you don't say what the prosecutor wants to hear?  What else have you been told about testifying today?  Do you know why you are here?  Why do you think?  Has anybody promised you a present if you tell what you told?

This line of questioning has the real possibility of getting the child, who has been rehearsed, to describe how much witness preparation has been going on.  It may also open the door as to how much witness preparation has been done by that sweet social worker who is only there to provide therapy and would never dare to cross the line between therapist and amateur police detective.

In summary, there is no evidence that indicates that children under the age of 11 have any cognitive capacity for the abstract thinking ability required to grasp the legal requirement for telling the difference between the truth and a lie.  As Wakefield and Underwager point out:

The inability of children to engage in the abstract reasoning required to discriminate between truth and falsehood as adults do and the confabulation of fact and fiction, both naturally occurring and as a result of learning, mean that judicial assessment of competency must be carefully assessed.  It cannot be assessed in a five to ten minute examination of a child's accuracy of observation coupled with a moral homily on truth telling.(31)

Nevertheless, you can predict that the judge will find all children competent, and the other issues will go to the weight of their testimony.

Mental Capacity of the Child in Question to Perceive and Retain Accurate Impression

Is it possible for a three-year-old child to remember an event, even sexual abuse, which may have occurred three months earlier?  The best witnesses in the area of child development are not psychologists who have devoted a lifetime to dealing with rats and emotionally disturbed people.  The best witnesses are those people who run day care facilities, nursery school and kindergarten facilities and deal with normal children.  If you want to learn about a child in particular, or children in general, talk to the people who have had actual contact with the young child.  They can provide insight into the ability of the child to perceive and remember events.

Perception of Size

Children under the age of six have not yet learned about relative size.  All cars are big and the ability to differentiate between a big big car and a little big car has not yet been learned.  One experiment involves making two small balls out of modeling clay.  The child under six will agree that the two balls are the same size.  If one ball is made into a sausage shape and laid beside the other ball, the child will indicate that the sausage shaped ball is larger because it is longer.(32)  Generally, when we hear a small child describe something as big, we know what the means.  Therefore, we do not ask "how big" because we think we have an idea of how big the object should be.  For all you know, a child who has had no experience will indicate that it was as big as a horse.

Perception of Time

We assume that children conceptualize time the same way we do.  But, remember when you were a child?  Remember asking: "When will we be there?"  "Soon."  "When is Christmas?"  "Soon."  No wonder children have a poor sense of time.

As Dr. Solnit points out:

"Unlike adults, who have learned to anticipate the future and thus to manage delay, children have a built-in time sense based on the urgency of their instinctual and emotional needs ... A child will experience a given time period not according to its actual duration, measured objectively by calendar and clock, but according to his purely subjective feelings of impatience and frustration."(33)

When it comes to defending the sexual abuse case, no one seems to be concerned with indicating when the event happened.  If you are told the date within a month, consider yourself fortunate.  One would presume that in order to perceive, recollect and narrate, a child to be competent would have to be able to tell you when the event is supposed to have happened.  My experience has been that the child is given many chances to choose a date for which your client does not have an alibi.

The issue of when the abuse is supposed to have occurred is most important on the issue of an alibi defense.  To the extent a child is accommodating the therapist by agreeing that abuse occurred, the one piece of information which your client has, but the therapist does not, is when your client had an opportunity to visit the child.  My experience is that court orders of visitation are always strictly adhered to.  As you know, very often these claims are made as part of a continuing custody/visitation problem and it is more likely than not, the date, if you can get one, will indicate no contact with the child.

However, because a child seems to be given an opportunity to keep guessing until she gets one right, don't overlook attempting to have your client recollect all the things he did during the month he was accused of molesting the child.  Remember, if it is a traditional visitation arrangement, your client will only have to account for his activities for four days in a one month period.

On the issue of alibi, our Supreme Court has recently decided that, in a criminal prosecution, the State does not have to indicate the specific date of the occurrence of the crimes charged.  "The state does not have a duty ... to disclose information which the state does not have. ...  We also recognize that because the state has been unable to be more precise, the defendant's presentation of his alibi defense may be more burdensome and difficult." State v. Evans, 205 Conn. 528, 535 (Dec.1987).  The wisdom of that decision comes in the dissent by Justice Covello who points out that the practice book requires that the state, upon motion by the defendant, shall disclose the date, time and place of the offense charged.  Practice Book Sec. 832.  He also points out that the failure to inform the accused of the nature and cause of the accusations may have constitutional implications. Id. 540.

Perception of Major Events

In August, 1987, there was a plane crash in Detroit in which the only survivor was a four-year-old child.  Experts, social workers and psychologists were brought in to break the news that her parents had been killed.  They were surprised when the child did not show any emotion or any interest.  Since death is such an abstract concept to children of that age and since they cannot understand the concept, the reality is of little significance.  Again, in this area, do not assume that children have the same meanings and thought processes as we adults have.

The child's recall of events is surprisingly deficient.  Young children cannot place months in any meaningful order, and the ability to even recall a sequence of events is faulty.  The alibi defense is often hard, if not impossible, because the investigators generally start their investigation with what and who, and never care about the other dimensions of reality where, when, and why.

Also, since the issue is the accuracy of memory, any cross examination of children will have to explore other events which the judge would find meaningful and the child's life, to wit: holidays, birthdays, special school events, and perhaps major medical problems.  If the child does not remember those events, the trier of fact may assume that any detailed recollection of abuse which occurred a year before will have been fabricated if the child can't remember what happened last Christmas.  That, of course, requires your client to have specific information about those events.  Otherwise, if the child tells you nothing happened at Christmas of '87, and you don't have any evidence as to what did happen on Christmas, you will be stuck with that response.

Perception of Minor Events

Fivush asked kindergarten children what happens in school in general and what happened the previous day in particular.  When asked specific questions about the previous days, about half of the children could not answer even when the event in question was a presumably attention-catching puppet show.  With prompting by the experimenters, the children could retrieve specific events which shows they had not been forgotten but were hard to recall in the context of considering the general script for a day at school.(34)  There are various assumptions which we make about children and their interpretation of events.

Incidentally, studies of children's memory for events in the "real" world show even kindergartners can recall some aspects about a novel event a year later.(35)  Those of us who have had small children are often surprised at the amazing accurate, episodic recollection of even young children.  Because of those occasional events, psychologists claim that children are accurate in their recollection.  It is also agreed that even the few statements produced by young children in free recall are likely to be accurate.  Further, the amount remembered will decrease as the interval between the encoding and the time of retrieval in the laboratory increases.

There is general agreement among investigators that the number of accurate statements produced in free recall increases with age.(36)  There is one study that is occasionally quoted for the proposition that children make as good witnesses as adults.  "The children were no more easily swayed into incorrect answers than were the adults.  In fact, according to one psychologist, 'We can get people to tell us that red lights are green, that curly hair is straight, that barns exist where there are none.'"  The study then goes on to suggest that "... style of questioning could be more to blame for inaccurate testimony than the age of the witness.  This becomes a problem ... because children are asked more leading questions. "(37)

But the reasoning is that since young children have little facility for recall you have to ask leading questions.  Hence, if you ask the right questions you will obtain the right answers and, therefore, the child will not be wrong!

 Distortion of Memory

Children, as young as four and five, demonstrate an awareness of subtle differences in language.(38)  Thus, there is a difference in, "Did you see the ..." rather than, "Did you see a ..."  There is a difference when you ask, "Did you see the broken headlight" because it presumes that there was a broken headlight.

Dale, et al. investigated the effect of the form of questions on the memory of preschoolers after they had viewed short films.  They found that the syntax of the question had no effect if the query concerned something which was actually present in the film.  However, if the entity was not present in the film, children were more likely to answer "yes" incorrectly when questions were worded thus:

"Did you see the ...?"
"Did you see any ...?"
"Didn't you see some ..."(39)

Children are susceptible to leading questions.  One experiment involved children who were in the school yard with the researcher.  They then went to their classroom.  He asked, "When you were ... in the yard, a man came up to me, didn't he?  You surely saw who it was.  Write his name on your paper."  Only 7 of the 22 eight-year-olds complied until the experimenter asked, "Was it not Mr. M?"  Seventeen children said "yes" despite the fact that no one had approached the experimenter outside.  That is 77% who were influenced.(40)

Cohen and Harnick found that third graders accepted false suggestions more readily and were less observant of detail than sixth grade or college students who were roughly equivalent in suggestibility and recall of detail.(41)

Influences on a Child's Memory:
Interrogation as a Learning Process

Wakefield and Underwager also point out that interrogation is a learning experience.  In your own analysis of a case, you should attempt to learn how much interrogation has taken place, by whom, and attempt to stop it.  If you can't, insure that it is videotaped in order to produce a record of the influences of the therapist on the child.

It has been noted that few of the persons involved in interrogations of children show any awareness of their own stimulus value or of the impact of their procedures as a learning experience upon the children and the reliability of statements made by them.  Whether it is a frown or a smile, a nodding in agreement, or the scowl of disagreement, the interviewer can and does influence the child.  That is the basis of most classroom learning experiences a question followed by a response followed by either positive or negative reinforcement."(42)  "The reality that is completely overlooked is that each of these experiences of interrogation is a learning experience for the child.  The dynamic nature and effects of this process must be acknowledged and understood.(43)

The following are examples of the effect of the interrogator "teaching" the child to act like a victim:

Child: (Doesn't say anything but apparently gestures)
Therapist: Oh he does?  With his eyes closed?  Is that it?  His eyes are closed?
Child: Urn hum
Therapist: And his mouth was open?
Child: (inaudible)
Therapist: And his tongue was out?
Child: Right
Therapist: Urn hum.

In the police report, the therapist described: "sexual rocking with heavy breathing, eyes closed, mouth open, tongue out ..."

In another example, the child has said that her father bounces on her.  The therapist asks the child what would happen if someone bounced on the therapist's dog:

Therapist: What would happen to her? (the dog)  What would you think she'd do?
Child: Bite them. (laughter)
Therapist: She might, or you know what she'd do?  She's not a biter.  She would be very frightened.  You know what she would do?  She'd go hide.
Child: Like where?
Therapist: She'd hide under the bed.

In the affidavit for the arrest warrant, the therapist states that her father pushed her down on the bed and bounced on her and that she then told the therapist that she used to hide under her bed when she's afraid her dad will bounce on her.

Personal Knowledge

It is possible that, because of influences that occur after the alleged event, the child no longer has personal knowledge of the event.   A judge in Hawaii found:

The questioning process utilized by the layers of adults to understand and organize the information attributable to (the two girls) concerning the "incident" has served to create an "experience" which both ... merely learned.  They lack personal knowledge, because they have no memory which the court can he assured is their personal recollection of the "event."  Cross examination could not effectively penetrate the wall of learned facts to reveal any real perception.(44)

In that case the judge conducted a lengthy hearing on the "personal knowledge" issue.  The judge received into evidence transcripts of all of the children's statements, copies of all of the audio- and videotapes, the transcript of the testimony before the grand jury, and a videotaped deposition of a third child, the boy who had denied that he was involved.  Much testimony was taken, including that of the police officers who investigated the case, the mothers of both of the allegedly abused children, and the analysis of the psychologist including his report of the results of the analysis of the taped statements.  Consequently, the judge issued an order excluding the testimony of the two girls on the basis that the girls no longer had "personal knowledge."(45)

In repeated interviews, using techniques such as the anatomical dolls, the children learn what is expected of them and, by repetition, may come to experience the subjective reality that an event happened, even when it never did.

Ability to Narrate

If the child has the ability to narrate, why do we need the social workers to interpret what the child is supposed to have done with dolls, drawings, etc?  If the child has the ability to narrate, why bring in others to testify about the circumstances in which the child made the accusations?  If the child has the ability to narrate, why is it necessary for the investigators to ask leading questions?

The fact is that we are often dealing with children who have difficulty narrating events especially those which happened only in the mind of the therapist.

Often there is a language development problem coupled with a parent, teacher, or social worker who wants to believe that the child has been abused.  For example, a girl was amused when her father put candies in her jamies.  The mother was not amused because she heard the child say that her father had put a candle in her vagina.  (And, of course, how would a three-year-old child be able to so explicitly describe such a sexual act if it did not occur?)

Leading Questions

You can anticipate that the younger the child, the more leading questions have been used.  Take, for example, the following example of how these interrogations occur:

Question: Okay.  All right.  What is your name?  Oh, out loud, out loud!
Answer: My name is Jane Doe.
Question: Jane Doe, how old are you?
Answer: Doe.
Question: How old are you?  Are you three years old?  Say yes.
Answer: I'm three years old.
Question: Okay.  Jane, I have two dollies right here.  Do you see the two dollies?  Say yes.
Answer: Yes.
Question: Okay.  One of these dollies is a man and one of them is you.
Answer: See her, she's the dolly and he's the daddy.
Question: This is the daddy?  Okay?
Answer: Yeah.
Question: Okay.  Now ...
Answer: Here's the daddy
Question: A daddy and a ..."
Answer: Me.
Question: And you.  Okay.  Now, tell me, this is daddy and this is you, and I want do you see this part right here.  This is you.  I want you to tell me who touched you right there.
Answer: I want to listen to a story.
Question: Okay, we're going to listen after you tell me who touched you right there.
Answer: Poppy.
Question: Poppy.  Did Poppy touch you a lot or a few times?
Answer: Just a little bit.
Question: He just touched you a little bit?  It's hard you don't want to tell me about that, do you, huh?  I can't hear you.  Do you want to talk about it?
Answer: I don't want to talk to you.
Question: You don't want to talk about that, huh?  It's too hard to talk about, isn't it?
Answer: I don't want ...

The idea that anyone touched the child came not from the child but from the therapist.  Notice the bribe no story until you cooperate and tell me what I want to hear.  And, when the child doesn't want to talk, the social worker decides that it is because it hurts the child to talk about it.

This is the kind of nonsense which more likely than not goes on.  But one thing to remember:  A child who is used to being led can be led all over the place not only by them, but by you.  They are there to cooperate and will say anything anybody, including you, wants them to say.

Take the following example:  This is a five-year-old who testifies on direct:

Question: Did anybody ever hurt you when you were living in your real home?
Answer: Yes.
Question: What was that?
Answer: Spanking.
Question: Was there anything else?
Answer: Yes.
Question: What was the other thing?
Answer: Touched on the private parts.
Question: What are your private parts?
Answer: Crotch.
Question: Did anybody ever touch you, other than your crotch, in your private parts?  Do you remember?
Answer: My butt.
Question: You said somebody touched you in your crotch with their finger, is that right or wrong?
Answer: Right.
Question: Did anybody tell you you should make these things up, that they weren't true?
Answer: No.
Question: You didn't make them up?
Answer: No.
Question: Did they really happen then if you didn't make them up?
Answer: Yes.

Now, for most lawyers, you might be hesitant to conduct a searching cross examination because this child has obviously been trained.

But remember, children who have been led up the hill can be led down the hill.

Cross examination:

Question: Do you remember when Tom (social worker) said, "Now it's time to practice for court ... ?"
Answer: Yes.
Question: ... And you practiced saying, "I'm telling the truth," with Tom, didn't you?
Answer: Yes.
Question: And you practiced with Tom saying that your mom and dad touched you in the private parts, didn't you?
Answer: Yeah.
Question: And during practice, if you gave a wrong answer, Tom would correct you, wouldn't he?
Answer: Yeah.
Question: ... And they kept telling you, "You have bad secrets," didn't they?
Answer: Yes.
Question: And before you were taken away from your real parents, you didn't have any bad secrets, did you?
Answer: No.
Question: ... You told a lot of people it was just pretend, didn't you?
Answer: Yeah.
Question: And you kept telling them that nothing happened last year, didn't you?
Answer: Yes.
Question: But they wanted you to tell them that some thing happened, didn't they?
Answer: Yes.
Question:  Yes.(46)

Children Who Make False Accusations of Sexual Abuse

Since children depend primarily upon adults for all knowledge, since children accept what adults say as being true, it is understandable, that given enough time with an investigator who has already made up his mind as to abuse, eventually the child yields and tells what is expected.

There is evidence of overt threats as occurred in Jordan, Minnesota.  Children were placed in foster care and were told that they could not see their parents until they admitted that the parents had abused them.  In some cases, the period of detention lasted for over a year.(47)

We have situations of browbeating in order to produce the response sought by the therapist.

The following interview occurred by MacFarlane, the social worker involved in the McMartin case:

MacFarlane: I thought that was a naked game.
Child: Not exactly.
MacFarlane: Did somebody take their clothes off?
Child: When I was there no one was naked.
MacFarlane: We want to make sure you're not scared to tell.
Child: I'm not scared.
MacFarlane: Some of the kids were told they might be killed.  It was a trick.  All right Mr. Alligator, are you going to he stupid, or are you smart and can tell.  Some think you're smart.
Child: I'll be smart.
MacFarlane: Mr. Monkey (puppet child had used earlier) is chicken.  He can't remember the naked games, but you know the naked movie star game, or is your  memory too bad?
Child: I haven't seen the naked movie star game.
MacFarlane: You must he dumb!
Child: I don't remember.(48)

Interrogation Bias

The interrogator who wants to believe that the child has been abused will filter out facts inconsistent with that conclusion and underline facts which are consistent.  When young children want to please the interrogator, by the time the sessions are over, both the child and the interviewer may believe that the child has been abused.

Furthermore, there exists a belief that if the child doesn't tell the therapist that he or she has been abused, it is because the child does not trust the therapist. (49)  The ultimate revelation is thought to occur only when the therapist has obtained the trust of the child.  Through this, the child may eventually learn to trust the therapist's version of the facts rather than the child's own recollection.  After all, we train our children to accept as true those things which adults tell them.

The interrogation bias also shows up in the interpretation which the interviewer gives to the responses of the child.  With the background belief that "A child couldn't possibly know about abuse unless it happened," the therapist is often quick to take simple, nonsexual terms and interpret them in a sexual manner.  Therefore, if a child says that her daddy pricked his finger, you can imagine how that will be perceived.  Such things as bouncing, bumping, grabbing, holding, touching, hitting, are presumed to be sexual, although if you want to see nonsexual use of those actions, try watching football or wrestling.  If it is sticky, slimy, gooey, yucky, it will be considered a sexual byproduct, when, to young children, anything that they are asked to eat that they dislike will be described in those terms.  If it is a secret, it can only be a secret about sexual activities, because children have no secrets about anything else.  If it is a game, whether doctor, nurse, mortician, it can only be a sexual game, because, according to these people, those are the only games children play with adults.  If Daddy touches a dog, or a cat, or a hamster, it is only with sexual intentions because, why else would an animal be touched?

Misleading Reports and Interpretation

Occasionally, you will find a report that indicates that a child said this or that.  If you listen to the audiotape of videotape you will find that the interrogator introduces a statement, topic or question, to which the child either gives no response, a denial, or minimal response.  After repeated questioning, the child may nod or answer yes.  However, the report will contain only the affirmation and none of the denial; it may even be an interpretation of a nod.

Furthermore, if you listen to a tape, you will be shocked at the amount of leading which occurs by the therapist.  You may be surprised at the tone of voice of the child and the affect.  One tape shows the child giggling and laughing as she describes the so-called abuse.

Wakefield and Underwager note that there are three concepts interrogators of children use when the child denies or refuses to admit that abuse happened.  They are: (1) the child is scared by some threat, (2) the child is frightened or ashamed and it is hard to talk about it, and (3) the child has a secret too scary to tell.(50)  When a child does not produce the desired response affirming abuse but denies it, interrogators come up with one or all of these suggestions.  The child eventually catches on to what is wanted and gives the desired response, and gets social reinforcement for producing the "right" answer.  In this manner, the child is taught to produce the explanations for the initial denial or refusal to acknowledge abuse.  Now the child (who has not admitted to any abuse) has come up with an acceptable reason why he did not admit it.  This, of course, is all the therapist wants to hear because now there is clear evidence of abuse.


(19) Whitcomb, D., Shapiro, E, & Stellwagen, L. When the Victim is a Child (Paperback), pp. 31, 32 US Department of Justice, National Institute of Justice (August 1985).  [Back]

(20) N.Y. for example had a presumption of 12 for civil (Olshansky V. Prensky, 185 App. Div. 469,172 NYS 856 and 14 for criminal. Code of Criminal Procedure, Section 392.  [Back]

(21) Coy v. Iowa, U.P.,108S.C. CT. 2798, 101L. Ed. 2d. 857 (1988)  [Back]

(22) Webster's New World Dictionary [Dictionaries ...], 2nd Edition.  [Back]

(23) Piaget, The Moral Development of Children. op. cit. Wakefield, H. & Underwager, R. Accusations of Child Abuse (Hardcover)(Paperback). Springfield, IL: Charles C. Thomas, Publisher, (1988).  [Back]

(24) Frost, 1986 op. cit. Emans, Psychology's Responsibilities in the False Accusations of Child Abuse. Unpublished manuscript, University of South Dakota (1987).  [Back]

(25) Piaget The Construction of Reality in the Child (Out of Print)(Out of Print). New York: Basic Books, Inc. (1954) op. cit. Emans, supra.  [Back]

(26) See also Wakefield & Underwager, supra, p. 85.  [Back]

(27) Wakefield & Underwager, supra, p. 91.  [Back]

(28) The Essential Piaget (Paperback), Gruber & Voheche, (Eds.) Basic Books, NY (1977) p.158.  [Back]

(29) Hartshorne, H. & May, M., Studies in the Nature of Character (Hardcover Reprint edition). New York: Macmillan, (1930) op. cit. Wakefield and Underwager, supra p. 25.  [Back]

(30) Wakefield & Underwager, supra, p. 25.  [Back]

(31) Wakefield & Underwager, supra, p. 146.  [Back]

(32) Totter & McConnell, Psychology Book: The Human Science, Holt, Rinehart & Winston. p. 227 (1978).  [Back]

(33) Goldstein, Freud, & Solnit, Beyond the Best Interests of the Child (Paperback), p. 40, 41 Free Press: McMillan, (1979).  [Back]

(34) Fivush, R. Learning about school: The development of kindergartners' school scripts. Child Development, (1984) 55,1697-1709 op. cit. Wakefield and Underwager, supra, p. 7.  [Back]

(35) Fivush, R., Hudson, J., & Nelson, K. (1984), op. cit. Underwager, supra p. 72.  [Back]

(36) Perlmutter, M., & Ricks, M. (1979), op. cit. Wakefield and Underwager, supra p. 73.  [Back]

(37) Cohen, R. & Harnick, M. The susceptibility of child witnesses to suggestion, Law and Human Behavior, 4, 201-215 (1980) op. cit. When the Victim is a Child (Paperback), supra, p. 36.  [Back]

(38) Dale, P., Loftus, E., & Rathbun, L. The influence of the form of the question on the eyewitness testimony of preschool children. Journal of Psycholinguistics Research, 7, 269-277 (1979) op. cit. Wakefield & Underwager, supra p. 75.  [Back]

(39) Dale, Ibid., op. cit. Nurcombe, B. The child as witness: Competency and credibility. Journal of the American Academy of Child Psychiatry, 25(4), 473-480, (1986).  [Back]

(40) When the Victim Is a Child (Paperback), supra p. 35.  [Back]

(41) Cohen, R. & Harnick, M. The susceptibility of child witnesses to suggestion, Law and Human Behavior, 4, 201-215 (1980), op. cit. Nurcombe, supra p. 475. See also Goodman & Mitchell, Would you believe a child witness? Psychology Today (November 1981).  [Back]

(42) Wakefield & Underwager, supra p. 30, 118.  [Back]

(43) Wakefield & Underwager, supra p. 30.  [Back]

(44) Hart, B. & Bartholomew, A. Preface, p. xii, Wakefield and Underwager, supra.  [Back]

(45) Id. p. ii.  [Back]

(46) A five year old takes the stand, Newsweek, p. 73 February 18, 1985.  [Back]

(47) Eberle, supra p.175.  [Back]

(48) Wakefield & Underwager, supra p. 46.  [Back]

(49) Wakefield & Underwager, supra p. 369.  [Back]

(50) Wakefield & Underwager, Id. p. 44.  [Back]

* Louis Kiefer is an Attorney at Law and can be contacted at 60 Washington Street, Suite 1403, Hartford Connecticut, 06106.  [Back]

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