The Child Protection Teams: Defenses for the Falsely Accused
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.
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
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
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).
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
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)?
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
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.)?
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?
the process? Who was present? What were the criteria (Dawes, 1989)?
there any deficiencies or missing data in the medical record? Poor
evidence in medical examination? Drug and medication history?
symptoms have been caused by conditions that were present before the
sexual or physical abuse occurred? Can symptoms have other etiology?
videotape evidence properly consented to? Is team infected with myths
from previous poor research that, in turn, affected their judgment?
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
a) Physical signs, if any.
b) Hair and fiber samples from alleged victim, if
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
g) Nonspecific vulvovaginitis (can be caused by
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
Other team dysfunctions worthy of noting for defense
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;
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
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
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
e) Does the alleged victim wish to punish a
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
d) How does the team deal with allegations of
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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* LeRoy G. Schultz is a professor of social work at
West Virginia University, and can be contacted at 708 Allen Hall, Suite
710, Morgantown, WV 26506. [Back]