The Child Protection Teams: Defenses for the Falsely Accused

LeRoy Schultz^*

Abstract: Teams are a medical concept, aimed at healing, not an evidence gathering process that will be directly applicable to a court's requirements.  Questions about team processes and team findings are suggested for both lawyers and expert witnesses, and are designed to carefully examine a team's proceedings to assess their weight and reliability.
  

Multidisciplinary teams are a major factor in the processing of reports and accusations of child abuse, both physical and sexual.  Availability of federal funds for child abuse teams started many of the teams now in place at county and city levels.  In some states regulations now require a team approach to decision making at all stages along the way for responding to a report or suspicion of child abuse.  In other jurisdictions it may be an administrative decision to use multidisciplinary teams.  Ordinarily, teams are composed of persons representing mental health, social work, medical, legal, and law enforcement disciplines.

The rationale offered to justify the use of multidisciplinary teams includes the recognition that decisions to be made are complex and involve these various disciplines and their knowledge base.  Multidisciplinary teams make decisions in reporting, investigating, and recommending dispositions when there is an allegation of abuse.  The belief and expectation is that the decisions made are therefore better, easier, and more accurate (Besharov, 1988).  Whether or not this expectation is realistic and is fulfilled by multidisciplinary teams actions is an open question.  There is no empirical data to support the conviction that multidisciplinary teams are more effective and increase accuracy.

There are four types of teams. These are (1) the hospital-based team, (2) the state consultation team, (3) the rural team, and (4) the treatment team.  The hospital-based team is where most criminal charges of child abuse are initiated and evolve (Schmitt, 1977).  The ramifications from an observation and analysis of the hospital-based team can be applied to the other types of teams.  Other professionals (defense attorneys, therapists, private investigators, prosecutors) and individuals under investigation who may be drawn into the process of dealing with an accusation should be aware of the function and the decisions made by teams.  More often it will be hospital-based teams making initial decisions causing further interventions and actions by the state.

Schmitt points up several potential weaknesses in the performance of teams.  These are: (1) team is so large, it bogs downs; (2) team's location may pose travel problem for team members; (3) team members experience power-struggles within team ranks; (4) confidentiality may be ruptured by various team members with different codes of ethics; (5) definitions of child abuse law may differ among team members; (6) team may not have, or wrongly have, policy to cover all situations and new team members; and (7) team may try to change its community.

Schmitt gives guidelines for good teams, and suggests departure from these guidelines should be justified (see pp. 303-338).  One of the major functions of modern teams is to "review cases for errors" (Krugman, 1988), but each team waits for referrals from the community, agency, or its own emergency room.  Ideal size of the team is minimally three (with use of teleconference) and eight in large urban areas.  Since teams cannot function without referrals, defense should learn what the nature of referral was (usually a "difficult" case) and whether the team engaged in conscious or unconscious mind-control or brain-washing of team members after deliberation.  Teams, although forty or more years old as a general concept, are a medical concept and not a criminal law evidence-gathering body and therefore are subject to errors which defense (lawyers and experts) should identify.  Teams are advisory, not executive in nature.

MacMurray (1989) states that prosecution may prove difficult for the following reasons, which also pose problems for teams.  These are: the alleged victim will not make a competent witness by virtue of age, the alleged victim has a relationship with the alleged culprit, and evidence may not be available concerning the abusive situation.  There is the question of potential harmful effects upon a child from being enmeshed in the process of investigation and potential trial.  There is the issue of the relative dependence of a child upon parents or guardians.  Age has an effect for both the alleged victim and the alleged perpetrator.  The younger the child the more likely a decision may be made to drop further state activity.  The younger the suspected perpetrator the more likely the case is screened out of further action.  It appears that less than half of the children involved in reports of abuse are examined by a physician.  If there is a medical exam, it is more likely that the case will be pursued further.  These are the first items that defense will evaluate.

Defense should identify the following and determine if they affected team judgment, in favor, or disfavor of the family member charged.  (1) Did the crisis nature of team deliberation (pressure for right now) cause distortion in assessment? (Black & Kaplan, 1988).  (2) Does the team have too many cases to hear, inciting the team to premature judgment?  (3) Were key participants unable to attend or give their contribution?  (4) How are new participants broken in, or given time to jell as team players (may range from six months to one year)?  (5) Did visitors to the team cause distractions?  (6) Was confidentiality protected for the alleged offender, alleged victim or siblings (particularly if victims and family are from a small town)?  (7) Did the examining physician "deputize" anyone (Packham, 1989)?

Ideally, a team will consist of a social worker (hospital and agency), pediatricians, nurses, psychiatrists, psychologists, a lawyer for the state, a guardian ad litem, sometimes a teacher or counselor, and a team coordinator.  Some teams allow a minority person to speak and a very few teams allow the alleged offender or family to be present.  If a family is not permitted to be present, then agency social worker must offer their defense and history.

Pediatricians are qualified to observe and describe physical evidence, but most sexual offenses against persons under age eighteen involve no penetration of vagina, anus or mouth.  Except for reporting "excited utterances" of alleged victims at the time of a medical examination, pediatricians opinions of psychological factors are no more valid than a laymen's.  Physicians are trained to accept as facts claims made during the taking of a medical history.  A physician's opinion or report about a medical examination where there are no physical findings but a statement is made that abuse is "consistent with" the history, must be treated very cautiously.  Unfortunately, teams tend to overinterpret medical opinions and give them more credence and credibility than may be warranted.  An equivocal or confused and unreliable medical report may be seized upon by other team members and used as the chief base for a team conclusion there was abuse.  Much of the physical examination findings can be challenged in court (see, for example, McCann, Voris, & Simon, 1989 and Krugman, 1989).  A team decision can be an activity where the threshold level for a decision is reached by tugging on your own bootstraps.

What follows is a set of questions about the team decision making that defense may want to raise when innocence of an alleged molester is maintained.  Did the physician who examined an alleged victim notice a discrepant history (time, place, act, etc.)?  Was there a lack of consultants called on this case?  Why?  Were team members knowledgeable of the case and alleged abuse (time allowed)?  How were misattributions dealt with by various team members?  Which team members disagreed and why?  How were decisions of the team arrived at?  What was the process?  Who was present?  What were the criteria (Dawes, 1989)?  Are there any deficiencies or missing data in the medical record?  Poor evidence in medical examination?  Drug and medication history?  Could symptoms have been caused by conditions that were present before the sexual or physical abuse occurred?  Can symptoms have other etiology?  Was videotape evidence properly consented to?  Is team infected with myths from previous poor research that, in turn, affected their judgment?  What happened in the communication between team members?  The Cleveland Inquiry (Butler-Sloss, 1988) and the reports by the attorneys general of Minnesota and California (Humphrey, 1985; Van De Kamp, 1986) of investigations of the handling of sexual abuse allegations by teams concluded a major cause of error was the lack of communication between team members and their agencies or institutions.

Did the examining physician follow an accepted protocol? (Indest, 1989). A physical examination should consist of these minimum requirements:

a) Physical signs, if any.
b) Hair and fiber samples from alleged victim, if any.
c) Fingerprint evidence, if any.
d) Fingernail scrapings, if any (Indest, 1989).

Physical evidence is the most poweiflil type. If a gynecological examination is required, it should con51st of:

a) Semen or sperm detection (if male suspect had orgasm, without condom, test not effective for female suspects).
b) Acid phosphate test (if male is suspect).
c) Choline test for a substance in semen only.
d) Semen protein test.
e) Saliva test.
f) Sexually transmitted disease test (duration of disease?).
g) Nonspecific vulvovaginitis (can be caused by poor hygiene).
h) HIV infection (suspect must have this disease)
i) Presence, if any, of lubricant in alleged victim's vagina, anus, or mouth (Indest, 1989).  Was lubricant found in suspect's home?

If these tests were not completed, why not? (Position Statement, 1988).

Other team dysfunctions worthy of noting for defense purposes are:

a) Team rivalry, between members (Davoren, 1983).

b) Turf building (look for grant-hustling here) that may have led to erroneous judgment.

c) Male-hating teams or gender-determined aspects of team judgment. (Emerson, 1988).

d) Misjudgment of dominance should not be confused with gender-identity. Ideology should not distort facts. (Aber & Repucci, 1987; Janis, 1983; Luntz, 1985).

e) Poor medical judgment or poor analysis of findings. (Freudenberg, 1988; Komaki, Desselles, & Bowman, 1989; Butler-Sloss. 1988; Reiker & Carman, 1986; Whyte, 1989; Travis, Phillipi, & Tonn, 1989).

f) No direct data or information from suspect or victim to team members (data is filtered through various team members) (Black & Kaplan, 1988).  As one lawyer stated: "At the outset in a protection proceeding, undue reliance should not be placed on the opinion of the social worker involved with the family.  It is a natural tendency for one professional to accept the evidence or opinion of another, especially if that person seems to be speaking from experience and appears reasonable.  There is nothing wrong with having a healthy skepticism at this stage of the proceedings" (Sammon, 1985).

g) Team has little experience with female suspects, female baby-sitters or female day-care workers.

h) Care orientation of female team members vs. rights orientation of male team members (at least stereotypically) (Gilligan, 1982; Rothblatt, Hanley, & Albert, 1986).

i) Use of criminal courts should be recommended by teams only after careful thought, with emphasis on the alleged victim's welfare (King, Hunter, & Runyan, 1989; Newberger, 1987).  Was this done?  Alleged culprit has legal right to confront alleged victim in court.

j) Members on the team may express biased judgments m favor of the child (Krowchuk, 1989).

k) Risk factors are very difficult to get evidence to support and may be made up of rhetorical devices that obscure. (Klatz, 1986; Jackson, 1989; Cope, 1989; Flango, 1989; Foote, 1989).

1) A professional suspected of child abuse may pose problems for which the team is ill-prepared, like social workers (Wright, 1982), therapists (Bajt & Pope, 1989), and medical staff (Girodet, 1987; Bingman, 1984).

There are other considerations as well in assessing team performance.  Multidisciplinary team members may use different ways to assess risk and forget that benefits are only probabilistic.  Risk is a fuzzy concept and everyone on a team may want to play it safe.  Team members may have been abused as children themselves which may affect their judgment.  Team members may move from rehabilitation to criminal conviction even though not prepared for the latter.  "Child's best interest" precludes thinking and planning without the "parent's interest."  Should teams take on role of the scrutinizer of others' roles?  Is the team managed by an open-minded person?  Was there any second (medical, psychological, or social) opinion made or offered?  Did the team ask for a lie-detector test?  Why, why not?  Was the team funded properly?  Hospitals may close and social service workers are not replaced as they resign or retire or budgets are trimmed.  Was the presenter's caseload too high for balanced judgment?  Was it a "team"?  Evidence from a hospital team, aimed at healing, may prove unreliable in courts.  What was extent of, and effect of, social agency lack of cooperation with team?  What social, medical, or health services were offered, or carried out, before the legal charges were placed.

Was the act alleged to have happened as a single act, or an accident?  This is important for "failure to thrive" charges — growth records and weight norms may be lacking.  Teams render service, they do not do research.  Generalizations that incite specific action should be challenged.  Did the team use paraprofessionals?  What were their qualifications, degrees, experience, and judgment?  Does the team have a career ladder for each professional?  If so, what effect did this have on judgment?  Issues that defense may want to pay attention to are:

a) Does the team have set routines or does it deal primarily with uncertainties?

b) Are there strong differences between team members in values, attitudes, job preparation, status, and rewards?

c) How does the team deal with competitiveness among professionals of different status?

d) Does the team have peer evaluations?

e) How are professional team members submerged into the team?

f) Does the team have authority to make decisions? Do evaluations tend to follow resource-availability?

Did the team use an unofficial scoring system to assess risk?  If so, what were the criteria used?  Did the team use the "Berger Method" in decision-making? (see Berger, 1989).  If fantasy may have been involved in the team's deliberations of alleged victim, the defense should ask:

a) Was fantasy erroneously interpreted by alleged victim?

b) Was the alleged victim's family setting overstimulating so that one family member may have worried that another would not be able to control his or her sexual impulses?

c) Is the right person being accused by the alleged victim (Cavanaugh, 1989)?

d) Is the alleged victim mentally ill or psychologically disturbed? Before, during, after the alleged event(s)?

e) Does the alleged victim wish to punish a particular adult?

f) Is the alleged victim feeling guilty about some-thing else connected with the sexual events?

g) Can the alleged victim distinguish between reality and fantasy?

h) Was the sexual event part of custody or visitation battle or parental kidnapping?

Other questions defense might want to raise regarding the team's deliberations are:

a) Did the alleged victims get an "anatomy lesson" from agency social worker?

b) Did the alleged victim make prior complaints of molestation?  Results?  Recantations? Is victim "addicted" to the victim's role (Kolk, 1989).

c) Did the alleged victim experience any sex education at school, Scouts, head start or day care, or at home which may account for a "graphic" nature of sex act description.

d) How does the team deal with allegations of innocence?

e) Was a DNA test requested by team?

f) Were inappropriate and unproven techniques used, such as anatomical dolls or children's drawings?

In conclusion, the four recommendations for the team by Katz (1986) are worth repeating: (1) the team should formalize its decision making; (2) the team should include minorities and families as voting members, (3) the team must establish linkages with local social services, and (4) the team must act as advocate for the innocent and the guilty.  Chronic pleas of "not guilty" by the suspect and their rarity should alert team members to the possibility of making a mistake.
  

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