Myths and Realities of Sexual Abuse Evaluation and Diagnosis: A Call
for Judicial Guidelines
Demosthenes Lorandos and Terence W. Campbell*
ABSTRACT: Ten myths associated with false allegations of sexual abuse are explored in terms of the relevant scientific literature. This literature, along with common experience, should be considered by family courts when they encounter cases involving sexual abuse allegations.
The purpose of this review is to explore ten myths associated with false claims of sexual abuse and children. We intend to provide a cogent statement of the scientific literature with respect to each of these myths. We hope that a synthesis of the current scientific findings and common experience will create the realities this area of family law needs.
Myths Associated With Sexual Abuse and Children
1. The incidence of child sexual abuse is much greater than previously realized.
In 1986, Diane Russell contended that 1 of every 3 females and 1 of every 6 males experienced incest or some other sexual trauma. Russell's work has greatly contributed to the level of misinformation regarding the prevalence of child sexual abuse. Okami (1990) insists that Russell's study was severely compromised by how she selected and trained her interviewers. He points out that her interviewers were taught to ask questions actively encouraging subjects to disclose a history of sexual abuse.
Gilbert (1991) argues that such biases promote "advocacy numbers" as opposed to legitimate data. Advocacy numbers attempt to persuade public opinion that the extent of some social problem
such as child sexual abuse is significantly greater than previously recognized. Finkelhor (1986) emphasizes that research addressing questions related to the prevalence of child sexual abuse must acknowledge the inevitable shortcomings associated with retrospective data. The reliability of survey investigations declines the more removed they are in time from the events they are examining.
Numerous researchers decry the lack of accurate base rates for this phenomena (e.g.,
DeJong, Hervada, & Emmett, 1983; Mason, 1991; Thoennes & Pearson, 1988). In 1987, the American Humane Association estimated 450,000 cases of child maltreatment each year. But in 1989, Quinn stated:
(1) lack of professional resources and training; (2) lack of investigatory independence; (3) improper interviewer techniques and behaviors; (4) inadequate data base; (5) contamination of cases by external influences; and (6) failure to understand the nature of false allegations. . . . lead to both over-and underdiagnosis of sexual abuse (p. 789).
Prevalence estimates for child sexual abuse span a very broad range. For example, Kolko (1988) reports the prevalence rates of different surveys ranging from 6% to 62% for females, and from 3% to 31% for males. If the published estimates of prevalence range from 3% to 62%, a range of that breadth indicates that we do not know what the actual prevalence rates are. Therefore, the actual incidence of child sexual abuse must be considered unknown at this time.
2. The vast majority of sexual abuse allegations are subsequently substantiated.
One source for this myth may be research such as that cited by Eckenrode et al. (1988). Although the number of abuse and neglect reports have soared over the past decade, the rate of substantiation has declined. Daro and Mitchel (1990) indicate that the 1989 annual 50 state survey found a 63% unsubstantiated rate. Flango (1991) surveyed New York state and found 61% of sexual abuse allegations for a period of one year (1985) could not be substantiated.
3. The emotional and behavioral effects of sexual abuse are clear and evident.
In 1983, Roland Summit published an article titled "The Child Sexual Abuse Accommodation Syndrome" (CSAAS). Summit described five characteristics commonly observed in sexually abused children: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction. Summit's purpose in describing the accommodation syndrome was to provide a "common language" for professionals working to protect sexually abused children.
But, unlike the "Battered Child Syndrome," which does detect physical abuse, the CSAAS syndrome does not detect sexual abuse. Rather, it assumes the presence of sexual abuse and explains the child's reactions to it. Summit did not intend the accommodation syndrome as a diagnostic device. Unfortunately, this important distinction between CSAAS and the battered child syndrome is too often ignored, and as a result, a number of ill-conceived behavioral indicator lists have been published that supposedly identify children who have been sexually abused.
Many less-than-well-trained "experts" in the field of children's sexual abuse use behavioral indicator lists to claim that, because a child's behavior is on the list, it is also "consistent with" sexual abuse. Levine and Battistoni (1991) criticize the use of various "behavioral indicators" as "consistent with" sexual abuse and state that none are valid without a direct statement from the child about sexual involvement. Beitchman, Zucker, Hood, daCosta, and Akman (1991) reviewed the literature on "behavioral indicators" and conclude that, with the possible exception of overtly sexualized behavior, the majority of symptoms shown in sexually abused children characterize child clinical samples in general. As social policy activist Doug Besharov observes, "Behavioral indicators, by themselves, are not a sufficient basis for a report" (1990, p. 39).
It is noteworthy that one of the key ingredients in the emotional and behavioral effects of sexual abuse is the way children and their care givers are treated by the public child welfare system. Diorio (1992) reports that parents whose children have been removed had uniformly negative opinions of the child protection system and perceived its actions as oppressive, unfair, insensitive, harsh, cruel, and tyrannical.
4. Children do not lie about their experiences of sexual abuse; therefore, when they express such allegations, their willingness to disclose them verifies the veracity of their statements.
This myth profoundly underestimates the most serious problem related to investigating allegations of child sexual abuse. Certainly, children can recall trauma accurately (Jones & Krugman, 1986), but they can also tell the examiner what the examiner wants to hear. It is not surprising, then, that a child involved in the Jordan, Minnesota case which turned out to be a tragic hoax later admitted to fabricating stories of abuse explaining, "I could tell what they wanted me to say by the way they asked the questions"
(Aric Press, 1985; Campbell 1992a).
A great deal of scientific inquiry has gone in to attempting to understand how children come to believe the preposterous and make statements about events that never happened (e.g., Benedek & Schetky 1987a, 1987b; Ceci, 1994; Ceci & Bruck, 1993; Ceci, Ross & Toglia, 1987a, 1987b; Cole & Loftus, 1987; Davies, 1991; Doris, 1991;
Ekman, 1989; Johnson & Foley 1984; Johnson & Howell, 1993; Loftus, 1993; McGough, 1991). Goodman and Clarke-Stewart (1991) describe a study conducted by Clarke-Stewart, Thompson and Lepore (1989) with 5- and 6-year-old children. The children interacted with a confederate named "Chester" who posed as the janitor and followed one of two scripts. In both scripts, Chester cleaned the room. Following this, in one script, Chester cleaned the toys and especially a doll, while in the other script Chester handled the doll roughly and suggestively.
Each child was then questioned about the event by an interviewer who was either 1) accusatory in tone, saying Chester had been inappropriately playing with the toys instead of cleaning; 2) exculpatory in tone, suggesting that Chester was just cleaning the toys and not playing; or 3) neutral and non-suggestive. Each child was then questioned a second time by an interviewer who either reinforced or contradicted the first interviewer.
When the children were given a neutral interview and when the interview was consistent with what they had observed, the children were accurate. But when the interviewer contradicted the script, the children's stories quickly conformed to the interviewer's interpretation. At the end of the first interviews, 75% of the children's stories about Chester were consistent with the examiner's script and 90% of the children answered at least some of the interpretative questions in agreement with their interviewer's script as opposed to what happened. When the second interview was of the same type as the first, only one child gave fewer than 6 out of 6 responses in line with the interview. When the second interview was contradictory to the first, most children changed their answers to conform to the second interview.
Research by Ceci, Ross, and Toglia (1987a, 1987b) yielded similar results. They found that children are very susceptible to modifying their story based upon an adult's post-event suggestions. However, children are even susceptible to suggestions by older children.
Leichtman and Ceci (in press) report on an experiment with a character named "Sam Stone." Sam Stone was described to 3- to 6-year-olds over a one month period as someone who was clumsy and who broke things that belonged to others. After this stereotype-induction period, Sam Stone visited the children's nursery school where he spent two minutes amiably interacting with the children during story time. He did not behave clumsily or break anything. The day after the visit, very few children accused "Sam Stone" of being the culprit responsible for a book being ripped or a teddy bear soiled. But, after a series of leading questions where the children were interviewed once a week for two minutes over a ten week period, 72% of the children said "Sam Stone" had ruined at least one of the items. When explicitly asked, 44% of the 3- and 4-year-olds said they had actually seen him do these things.
Perhaps the most noted of memory researchers, Elizabeth Loftus, has explained the process of reconstruction and how people can come to believe firmly in events that never happened:
Truth and reality, when seen through the filter of our memories, are not objective facts but subjective, interpretative realities. We interpret the past, correcting ourselves, adding bits and pieces, deleting uncomplimentary or disturbing recollections, sweeping, dusting, tidying things up. Thus our representation of the past takes on a living, shifting reality; it is not fixed and immutable, not a place way back there that is preserved in stone, but a living thing that changes shape, expands, shrinks, expands again, an amoeba like creature with powers to make us laugh, and cry, and clench our fists. Enormous powers powers even to make us believe in something that never happened (Loftus & Ketcham, 1991, p. 20).
The noted child psychologist, Piaget, provided this personal account of memory turning into "fact":
. . . one of my first memories would date, if it were true, from my second year. I can still see, most clearly, the following scene, in which I believed until I was about 15. I was sitting in my pram, which my nurse was pushing in the Champs Elysees, when a man tried to kidnap me. I was held in by the strap fastened around me while my nurse bravely tried to stand between me and the thief. She received various scratches, and I can still see vaguely those on her face. Then a crowd gathered, a policeman with a short cloak and a white baton came up, and the man took to his heels. I can still see the whole scene, and can even place it near the tube station. When I was about 15, my parents received a letter from my former nurse saying she had been converted to the Salvation Army. She wanted to confess her past faults, and in particular return the watch she had been given as a reward on this occasion. She had made up the whole story, faking the scratches. I, therefore, must have heard, as a child, the account of this story, which my parents believed, and projected it into the past in the form of a visual memory (Piaget, 1962).
5. Physical examinations frequently provide reliable evidence of sexual abuse.
Until recently, studies comparing the genitals of sexually abused children with those of nonabused children were characterized by their conspicuous absence. Without normative data provided by studies of nonabused children, the significance of any physical findings on a child suspected of being abused cannot be assessed. In 1989, Paradise estimated a false positive rate of 65% when assessing penetration and 73% when assessing digital penetration. Since that time, physicians all across the country have worked to determine what is normal and what is not
(Berenson, Heger, Hayes, Bailey, & Emans, 1992; Fay, 1991; Finkel, 1988, 1989; Heger & Emans, 1990, 1992; McCann, Voris, & Simon, 1992; McCann, Voris, Simon, & Wells, 1989, 1990; McCann, Wells, Simon, & Voris, 1990; Paradise, 1989; Paul, 1990).
In 1987, Emans, Woods, Flagg, and Freeman found a large range of hymenal openings in their subjects and reported that the genital findings of sexually abused girls were similar to nonabused girls in their study. McCann and his colleagues have now conducted research on over 300 prepubertal children who have been screened to rule out sexual abuse. They report a high incidence of nonspecific findings such as erythema, tags, fissures, scars, adhesions, notches, thickening, and anal relaxation in their sample of nonabused children. They have also found a large range of vertical and horizontal hymenal orifice diameters and report that this varies by age group and by the techniques used to examine the child.
Prompted by this research, Coleman (1989) analyzed almost 200 medical examinations performed on children in cases of alleged sexual abuse. He reported that almost all of the "findings" described as abuse were found in the McCann studies with normal children. Such research has prompted the American Medical Association (1993) to issue specific guidelines for sexual assault examinations in young children. Krugman (1989) observed:
The medical diagnosis of sexual abuse usually cannot be made on the basis of physical findings alone. With the exception of acquired gonorrhea or syphilis, or the presence of forensic evidence of sperm or semen, there are no pathognomic signs for sexual abuse (p. 165-166).
6. Children who demonstrate a level of sexual knowledge beyond their years have likely been sexually abused.
Rosenfeld and his colleagues (Rosenfeld, Bailey, Siegal, & Bailey, 1986; Rosenfeld,
Siegal, & Bailey, 1987) stress getting normative information on nakedness, genital touching, and bathing practices before deciding whether any of these behaviors support a suspicion of sexual abuse. They surveyed parents of 2- to 10-year-old children and found considerable variability in family bathing practices, although children were more likely to bathe alone as they grew older. Touching a parent's genitals was associated with the child's bathing with the parents, and genital touching of parents on an incidental basis was not uncommon even among 10-year-olds. They conclude that bathing with a child or letting the child touch the parent's genitals should not be used as evidence of sexual abuse unless these behaviors are accompanied by more extensive and persuasive evidence of abuse.
Haugaard and Tilly (1988) observe that 28% of male and female undergraduates reported having engaged in sexual play with another child when they were children. Cooke and Cooke (1991) note that bathing, toileting, blowing on a youngster's stomach, and tickling have been distorted into sexual abuse by a parent bent on winning a custody dispute. Friedrich, Grambsch, Broughton, Kuiper, and Beilke (1991) report a wide variety of sexual exploratory behaviors in their sample of 880 nonabused children between 2 and 12 years of age.
Mannarino, Cohen, Smith, and Moore-Motily (1991) report no differences in sexual behavior between abused girls and a clinical control group of nonabused girls. Kendall-Tackett, Williams, and Finkelhor (1993) found that the frequency of sexualized behavior in sexually abused children (including frequent and overt self-stimulation, inappropriate sexual overtures toward other children and adults, and compulsive talk, play, and fantasy with sexual content) is somewhat difficult to determine. They report that across six studies of preschoolers (the children most likely to manifest such symptoms) an average of only 35% exhibited sexualized behavior.
7. Like children who have suffered other traumas, children who have been sexually abused typically repress their abusive experiences.
Lenore Terr's (1985, 1988, 1990) work with children who have suffered documented trauma is illuminating here. Terr notes that children over the ages of 3 or 4 do not become partly or fully amnesic for the trauma or employ massive repression or denial. She reports that, although ordinary memory may be distorted and changed by later input, traumatic memories are clear and detailed with little chance of gradual wipeout. She finds that children over 3 or 4 clearly remember their trauma and, although they may deny parts of the aftermath and the effect on them, do not deny the event.
Malmquist (1986) reports on 16 children age 5 to 10 who had witnessed the murder of a parent. Not a single child "repressed" the memory. Rather, they all had vivid memories and were preoccupied with the murder and continually flooded with pangs of emotion about it.
Jones and Krugman (1986) describe a 3-year-old girl who was abducted, sexually abused, and left to die in a mountain outhouse. When found and later interviewed by the police she was able to describe what had happened and to pick out the perpetrator from a lineup. The perpetrator ultimately confessed, confirming the accuracy of the child's description. In this case, there was no evidence whatsoever of repression despite the brutal trauma which the child endured.
It is the treatment the child receives from the public welfare system, law enforcement and the courts that interferes with accurate memories (Berliner, 1988; Jones, 1991).
8. Psychotherapy can assist children to recover previously repressed memories of sexual abuse by alleviating their repression.
Unfortunately, psychotherapy for children thought to have been sexually abused can convince them of their supposed abuse when, in fact, it never occurred. (Lindsay, Johnson, & Kwon 1991; Campbell, 1992b, 1992c, 1992d). Treatment for children in these circumstances typically involves play therapy, or other similarly expressive modalities.
Like any other psychotherapy orientation, the direction of play therapy responds to the theoretical convictions of its practitioners. Play therapists endorse a tension-reduction treatment model that enthusiastically embraces cathartic experiences. As a result of their therapist's selective reinforcement, children in play therapy learn when they are expressing "angry feelings" and how significant such expressions supposedly are. In circumstances of alleged sexual abuse, play therapists will often encourage children to direct dramatic expressions toward the supposed perpetrator draw pictures of the perpetrator and tear them up, or write angry letters to the alleged perpetrator.
Such activities obviously arouse a great deal of imagination and fantasy, and data related to source monitoring demonstrate that children frequently find it difficult to differentiate between events they actually experienced and events they only imagined. Play therapists also resort to a standardized interpretive formula that explains to children: "You are experiencing A because you were sexually abused, and you are experiencing B because you were sexually abused, and you are experiencing C because you were sexually abused." Inundated with this kind of unrelenting propaganda week after week, and month after month, children frequently revise their memory to conform with the input of this trusted adult.
As early as 1975, Grice described conventions of child-adult conversations with what was called the "principle of cooperativity." Since that time, researchers have found that children perceive adult conversation partners as truthful and cooperative (Garvey, 1984; Nelson &
Gruendel, 1979; Romaine, 1984). Researchers have also discovered that children provide their adult conversation partners with the type of information they think the adult wants (Ervin-Tripp, 1978; Read & Cherry, 1978).
Many researchers have examined the effects of misleading children through the interview process. (e.g., Dale, Loftus, &
Rathbon, 1978; Foley & Johnson, 1985; Loftus & Davies, 1984; Loftus &
Zanni; 1975). King and Yuille (1987) suggest that if an interviewer gives signals as to what the interviewer is searching for in an answer, children are very responsive to such signals. Relative to adults, children are more suggestible because they find themselves in more situations in which they are unfamiliar. As a consequence, children are likely to pay attention to anyone (especially an adult) who they believe knows how to behave in that situation.
Petit, Fagan, and Howie (1990) examined how an interviewer's information about events affected their style of questioning and the accuracy of 3- to 5-year-old children's reports. The children participated in a staged event in their school and were later interviewed about it. Three sets of interviewers were used. The first set of interviewers was given full and accurate details about the staged event, the second set was given inaccurate information about the staged event, and the third set was given no information about the staged event at all.
All of the interviewers were told to question each child until they found out what had happened, but were cautioned against the use of leading questions. On average, the children were asked 50 questions each in 20- to 30-minute interviews. In this way, the children were put under a great deal of pressure to provide information.
Petit et al. report that, despite the cautions to avoid leading questions, 30% of all the questions were leading and 50% of these were frankly misleading. Interviewers with no information at all asked higher and higher numbers of leading and misleading questions. As their interviews wore on, they obtained higher and higher percentages of inaccurate information from the children.
Interviewers with inaccurate information asked four to five times as many misleading questions as the other interviewers. Children who were questioned by the misled interviewers provided the most inaccurate information. And across all groups, the children agreed with 41% of the misleading questions.
Benedek and Schetky (1987b) discuss how otherwise well-intentioned examiners can mislead children. They believe that several factors can influence children to provide misleading information: (1) adults may misinterpret what a child states; (2) the possibility of abuse may lead to hysteria; or (3) an adult may have malicious motives. In addition, as a result of the media coverage of sexual abuse, parents and the professional community are more likely to suspect sexual abuse as a cause for symptom formation, even when sexual abuse has not occurred.
Clinical professor of psychiatry at Columbia University, Richard A. Gardner, who has written widely on issues of child/examiner interaction, points out how less-than-well-trained examiners can contaminate child victims:
Not only do the examiners make frequent use of leading questions, but they use leading gestures. Although leading questions can easily be seen on the transcripts of these interviews, the leading gestures are rarely described by the transcriber. These gestures play an important role in what is actually taking place and in the "programming" that occurs with these dolls. Leading stimuli, which refer to dolls (especially anatomical), body charts, and other instruments can also contaminate the interview by encouraging the child to talk about sexual issues (1992a, p. 145).
Leading Stimuli. These stimuli are instruments that are generally used in interviewing by mental health professionals, especially psychologists and psychiatrists. . . . They all involve an external stimulus that serves as a focus for the interviewee's verbal response (1992a, p. 145).
Clinical psychologist Sue White and psychiatrist Kathleen Quinn (1988) discuss critical issues of investigatory independence in child sexual abuse evaluations:
External independence requires that an interviewer maintain an objective stance of not allying himself/herself with any particular individual involved in the investigation of the allegation. Practically, this requires the evaluator to deal equally with all involved parties (p. 269).
Internal independence . . . is the evaluator's internal ability not to be biased relative to the allegations. The lack of internal independence is exhibited in two major categories: (1) the verbal content of the interview and (2) the interviewer's behavioral influences (p. 270).
Describing examiners who are in pursuit of an agenda, White and Quinn define leading questions: ". . . leading is used to refer to a question in which the answer is expected to be in the question." Drawing on Black's Law Dictionary, they distinguish "suggestive questions" where:
. . . the presentation of an idea especially indirectly as through association of ideas, bringing before the mind for consideration in the nature of a hint. The example, "Your daddy did put his finger in your vagina, didn't he?" should be considered leading, but a question such as "Did your daddy put his finger in your vagina?" should be classified as suggestive (p. 271).
According to White and Quinn, "Leading should be considered to have occurred when the interviewer introduces any material that the child has not previously revealed to that interviewer" (p. 271). They discuss the use of "Yes-No" questions and multiple choice questions and describe "disconfirmation" as a technique frequently used by adults to influence a child's decisions:
For example, a mother may ask, "What do you want to eat?" to which the child responds "Candy." Dissatisfied with that answer, she then disconfirms the child's answer by saying, "You don't want candy. How about some soup?" (p. 273).
Leading the child away from her answer, telling the child she is wrong or simply ignoring the child's answer are all examples of disconfirmation.
White and Quinn describe the coercion that often happens in children's interviews. They note that when interviewing suspected victims of sexual assault, truth-lie paradigms, positive or negative rewards, repetitive questioning, and threats may clearly "compromise the evaluation because of their directive nature" (p. 274-275). They recommend that any fact finder assess the investigatory independence manifest in the interview process. A fact finder must ask:
1. Has the evaluator made a thorough review of all primary sources which document the child's original complaint and made an analysis of the family history, a psycho-social history, examined alternative explanations for the child's presenting behaviors?
2. Has the evaluator distorted the data by the pursuit of his or her own agenda?
3. Has the evaluator aided in the incorporation of data from outside the child's experience into the child's memory of events?
4. Has the evaluator contaminated the child's memory by repetitive leading questions and gestures, causing the child to encode memory supplied by the evaluator?
Quinn, White and Santilli (1989) discuss the impact of physical cues, investigatory materials, and emotional interactions, such as tone of voice and nonverbal communication. They note that many reforms have been instituted to improve the prosecutability of child sex abuse cases. But these very reforms coupled with a zeal to "protect" children by less-than-well-trained examiners can have confounding and contaminating results. One unpublished Hawaii opinion ruled that two children were disqualified from testifying in a sexual abuse case, based on an expert's opinion that each child had been subjected to layers and layers of interviews, questions, examinations, etc., which were fraught with textbook examples of poor interview techniques. State v.
McKellar, No. 85-0553 (Haw. Cir. Ct. Jan. 15, 1983), cited in Bulkley (1989).
9. Specialized training assists mental health professionals to assess allegations of sexual abuse more appropriately than they otherwise would without such training.
Fraught with such difficulties, "expertise" has been relied upon by the courts to aid in difficult decision making. Specialized training with attention to base rates and predictive error rates seems most desirable. Horner,
Guyer, and Kalter (1992) and Horner and Guyer (1991) studied "experts" and their decision making. Reporting their findings in 1992, they described their paradigm:
Study 1 focused upon a group of eight senior clinicians (5 men, 3 women) with an average of 15 years of postgraduate clinical experience. . . . The second study focused on a group of graduate students undergoing clinical training at the clinic in which the aforementioned senior clinicians held supervisory and teaching appointments. . . . Clinician-subjects participating in Study 3 belonged to the staffs of four child guidance clinics . . . who volunteered to participate in the study. . . . Fifty clinician-subjects across the four clinics participated (pp. 152-154).
The clinicians viewed a video tape of "Melissa" and her family members, and there was a group discussion. The results of the studies were surprising:
The most striking feature of these studies' findings is the extremely large range across experienced and nonexperienced clinicians of estimates concerning the likelihood that Melissa was sexually abused by her father. . . . Even following the detailed group discussion of the case, with that discussion's opportunities for weighing and emphasizing different aspects of the case, the range of individual likelihood estimates was very large. . . . These findings lend support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e., objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases (p. 162).
At the time Horner and his colleagues were studying expertise, Stevenson, Leung, and Cheung (1992) were studying training. A comprehensive, 10-day, seven-module curriculum, "Child Sexual Abuse Curriculum for Social Workers," was developed by the American Association for Protecting Children
(AAPC), a division of the American Humane Association. To evaluate trainees' competence in conducting initial assessment interviews with alleged child victims of sexual abuse, a video-based evaluation procedure and a rating instrument were created. A standardized case scenario was constructed and role played by adults, simulating an initial interview with a victim of child sexual abuse.
Results did not support the hypothesis that assessment skills improve immediately following training. For example, in Kentucky, the average pretest score was slightly, but not significantly, lower than that of the post-test score. In California, however, the opposite occurred. Pretest scores were higher than post-test scores. This study collected data from 12 experienced social workers in Kentucky, and 24 experienced social workers in California.
Horner, Guyer, and Kalter (1992) note:
We have previously observed that many clinicians rarely view themselves as operating according to the principles and laws of human decision making that governs ordinary persons. They rarely seem to believe, for example, that their conclusions are subject to determinable and therefore predictable rates of error. They therefore rarely pause to consider what those rates of error are (p. 166).
Gardner (1991) deals with issues of specialized training and "experts" uninterested in their predictive error rates:
Who are these people? . . . Many are self-styled "therapists" who have absolutely no training at all, even in related disciplines. . . . Many of these ill qualified and incompetent take "courses" in which they are trained by people of questionable qualifications. (p. 38-39).
Gardner describes how these "validators" use behavioral lists and "consistent-with-sexual-abuse" reasoning. He reminds us of the draconian condemnation of childhood masturbation in the late nineteenth century and concludes that validators lack common sense and are a product of an eroded educational system. He suggests that they often get through college without taking any rigorous courses, such as mathematics, physics, and chemistry, which would teach them common sense. He believes they demonstrate a:
Holier-Than-Thou Phenomenon: Validators often manifest this patronizing attitude. They unlike the rest of us are there to protect children. They unlike the rest of us "believe the children." . . . It provides these examiners with a feeling of special importance, which likely serves to compensate for basic feelings of inadequacy (1991, p. 49).
Gardner describes the outcome of the work of these less-than-well-trained "experts":
The Golden rule has essentially become a quaint anachronism. . . . There is an element of psychopathology apparent in a person who would see a three-year-old child for a few minutes and then write a note stating that a particular individual (the father, the stepfather, a nursery school teacher) sexually abused that child. It takes a defect in the mechanisms of conscience to do such an abominable thing (1991, p. 50-51).
10. Anatomically detailed dolls are reliable procedures for assessing allegations of child sexual abuse.
Anatomically "correct" or anatomically detailed dolls have been controversial since they were first used. If anything, this is the area where the myth dies the hardest death.
As early as 1985 Gabriel commented:
On the evidence of the dolls alone, when used as part of a "fishing expedition" exercise, the suspect will almost always be found "guilty," especially if the examiner is already biased in that direction. There is every reason to suspect that the present situation will deteriorate unless it is properly challenged. Thus it can be seen how extremely important it is not to allow suspect "evidence" to be introduced by unevaluated diagnostic tools (p. 49-50).
In 1986, White, Strom, Santilli, and Haplin noted, "[One] of the more pressing problems created by the use of anatomical dolls [is] the lack of structured procedures to guide the interview process" (p. 520). In 1988, Terr observed that the use of anatomically detailed dolls stimulates sexual fantasy, heightens suggestibility, and increases the likelihood of obtaining false reports of abuse (Yates & Terr, 1988). In that same year, Boat and Everson (1988) surveyed purchasers of anatomical dolls and discovered that less than half of the nonmedical evaluators (child protection workers, law enforcement officers, etc.), had any formal training on doll use prior to purchase.
The following year, Glaser and Collins (1989) studied 92 nonabused 2- to 6-year-olds, most between the ages of 3 to 5. The children were encouraged to play with the dolls, to undress the dolls, to name the dolls' body parts, and to identify two functions of each body part. Glaser and Collins concluded, "At present, insufficient information exists to permit play with the dolls to be regarded as a clinically reliable screening test for sexual abuse."
Goodman and Aman (1990) found that misleading and suggestive questions affected the children's accuracy in all age ranges and in all conditions. The inaccuracies increased when the dolls were used.
Three-year-olds' inaccurate responses ranged from 33% when asked specific, but not misleading, questions in the no-doll condition, up to 48% when they were asked specific questions in the anatomical doll condition. When the 3-year-olds were asked misleading questions in the anatomical doll condition, their inaccurate responses increased to 52%. The misleading questions included, "He took your clothes off, didn't he?," "He kissed you, didn't he?," and "How many times did he spank you?" (p. 1866).
Realmuto, Jensen, and Wescoe (1990) described previous doll studies and observed that the findings were limited by methodological problems such as small sample size, nonblind status of the other participants in the interview, the sexualized behavior of the nonreferred control group, the documentation of sexual abuse, and the failure to establish interrater reliability in multiple interviews. Their study resulted in more false positives (67%) than true positives (33%) and they concluded that the anatomical dolls are of little help in accurately differentiating real cases from false cases.
Robert Levy, in an inaugural address for the Dorsey & Whitney endowed professorship at the University of Minnesota, concluded about the anatomical dolls:
Surveying the fact-finding landscape, l conclude that the fairness of fact finding in juvenile court and divorce proceedings has been jeopardized (1) by the desire of juvenile and domestic relations court judges to avoid any chance that an abused child will be denied protection, and (2) by testimony of mental health professionals about evaluative techniques that are unscientific and deceptive but very influential (1989, p. 388).
Levy described "a number of pseudoscientific nostrums" as "pernicious," and saw the anatomical dolls as among the most pernicious:
The literature inspires little confidence regarding the validity of any proposition concerning the meaning of children's play with anatomically correct dolls. Dolls were "discovered" in 1976 and first manufactured for general use in child sexual abuse investigations in 1980, and the first appellate decision following a trial in which an expert testified about anatomically correct dolls occurred in 1982. By the time the first study of any kind was publicized, 129 civil and criminal appellate cases reflecting the use of anatomically correct dolls at trial had been reported (p. 400). . . . Dolls testimony should be inadmissible There is literally neither theoretical nor any empirical basis for drawing any conclusion about what a given child's play with the dolls means (p. 407).
Indeed, subsequent research confirms Levy's view (Skinner & Berry, 1993; Wolfner, Faust & Dawes 1993). Most recently, Judy DeLoache (1995), whose research is on the developmental aspects of symbolic representation, observed that not only is there no good evidence that dolls help in interviews with very young children (age 3 and below), but that the presence of the dolls might result in the youngest children providing less information. It is younger children who are especially likely to be interviewed with the dolls. But younger children cannot understand the basic self-doll relation assumed by interviewers who use the dolls. Her research indicates that very young children cannot use dolls as symbols or representations for themselves and therefore cannot use the dolls to enact their own experience.
Forensic psychologists Hollida Wakefield and Ralph Underwager (1994) conclude:
In summary, there is no evidence that doll interviews are a reliable method for getting accurate information about sexual abuse. The studies that claim to show differences between the responses of sexually abused and nonabused children have major methodological short-comings which limit any conclusions that can be drawn from them (p. 236).
False Allegations of Sexual Abuse How to Recognize Them
An allegation of sexual abuse is a powerful weapon. In a child custody dispute a vengeful parent may exaggerate nonexistent or inconsequential sexual contact and build up a case for sexual abuse. Judge Gallett
(Gallett, 1989), of the New York Family Court, notes that some of the sexual abuse allegations in the courtroom are simply manufactured by the parents. Children, caught up in the power play between their parents, may try to ingratiate themselves with the accusing parent. Gardner (1987, 1992b) calls the process by which a child identifies with the vilifying parent and communicates absolute hatred for the accused the "Parental Alienation Syndrome."
In situations such as these, Gambrill (1990) points to the need for critical thinking among clinicians. She emphasizes that any decision-making structure built on error is liable to produce error at an indeterminate, unrecognized, but significant level that causes harm. She points out that in an analysis of the decisions made by the child abuse system, the most probable and most frequent type of error is false positive, that is, identifying an individual as abused or an abuser when it is not true.
Since the mid 1980s, research into false allegations has grown dramatically. Brant and Sink (1984) found 3 of 4 allegations studied (75%) to be false. In one sample, Benedek and Schetky (1985a) found 10 out of 18 (55%) to be false. Other studies that have looked at the rate of false accusations in visitation and custody disputes and have found shockingly high rates of false allegations. Green (1986) documented 4 out of 11 (36%) as being false. Schuman (1986) reports 7 cases of false accusations of sexual abuse. Dwyer (1986) reported 77% of the divorce-linked allegations of sexual abuse referred to the Human Sexuality program at the University of Minnesota have been found to be "hoax" cases. Everson & Boat (1989) report at least 8% substantiated false claims. (See also Ash 1985; Benedek &
Schetky, 1985b; Bishop & Johnson, 1987a, 1987b; Blush & Ross, 1987;
Bresee, Sterns, Bess, & Packer, 1986; Coleman, 1990; Coleman & Clancy, 1990; Elterman &
Ehrenberg, 1991; Fisk, 1989; Gardner, 1992b; Gordon, 1985; Hindmarch, 1990; Kaplan & Kaplan, 1981;
Kaser-Boyd, 1988; Mantell, 1988; Paradise, Rostain, & Nathanson, 1988; Rand, 1990; Schultz, 1989; Sheridan, 1990; Sink, 1988; Wakefield & Underwager, 1991, 1994).
What Can We Look For to Separate the True From the False Allegations?
Everstine and Everstine (1989) report that, in divorce and custody proceedings, the younger the child, the more susceptible the child is to coercion and manipulation in the interests of one parent against another. DeYoung (1986) observes that false allegations often lack in the contextual and affective details typically found in accurate claims. Jones and McGraw (1987) note that accounts of actual abuse have contextual details, given the child's age, and unique and idiosyncratic details as well. Usually, appropriate emotions, reports of coercion, secrecy and threats spontaneously accompany valid claims. Therefore, the quality, quantity and affective nature of contextual details is useful in separating true from false allegations.
Schetky and Green (1987) observe that children who make false allegations tend to speak easily with an absence of negative affect about the sexual events they describe and that they parrot phrases, use adult sexual terms, and relate warmly to the supposed abuser. Schaefer and Guyer (1988) suggest that most false allegations involve younger children and report that most of the children in their sample of false accusations were 5 and under. They also note that vagueness is particularly indicative of false allegations. Yates and Musty (1988) report that allegations are less likely to be correct when it is the parent, rather than the child, who initiates the investigation. Jones and Seig (1988) observe that when allegations are false, children usually give vague, inconsistent or unrealistic accounts. Ross and Blush (1990) describe three personality types commonly found in false allegations of sexual abuse:1) the histrionic personality; 2) the justified vindicator; and 3) the borderline personality.
Wakefield and Underwager (1990) report:
Out of approximately 500 cases in which we have provided expert consultation in the past six years involving sexual abuse accusations, 40% were divorce and custody cases. Of these divorce and custody cases that have been adjudicated, for three-fourths there was no determination of abuse by the legal system. That is, charges were dropped or never filed or the person was acquitted in criminal court, or there was no finding of abuse in family court (p. 122).
Wakefield and Underwager (1990) describe the way the child sexual abuse system has developed and how it rewards the making of an accusation with all manner of reinforcements.
The person who is hated is punished. There is social approval for making the accusation. There may be free legal counsel, welfare payments, approbation and support from mental health professionals, therapists, friends, family, neighbors. There is no response cost for making an accusation (p. 124).
Wakefield and Underwager (1990) compared 72 falsely accusing parents and 103 falsely accused parents to a control group of 67 parents involved in custody disputes where there were no sexual abuse allegations. They examined the psychological evaluations of these subjects and found that the falsely accusing parents were much more likely than the control group and the falsely accused parents to have personality disorders, such as passive-aggressive personality disorder, borderline personality disorder, paranoid personality disorder and the same histrionic disorder Ross and Blush (1990) found. Three-fourths of the falsely accusing parents had a personality disorder compared to one-fourth of the falsely accused parents and the control group.
Green and Schetky (1988) describe the exploitive parent:
A number of parents caught up in custody battles or visitation disputes have exploited the epidemic of sexual abuse by using such allegations to promote their own interests at the expense of their child and their former spouse. Allegations have become a surefire way of getting a judge's attention and cutting off visitations. They have the same emotional impact that issues of adultery once had in custody battles a decade or more ago (p. 104).
Facing this problem, the
Academy of Child and Adolescent Psychiatry (1988) advocates specialized training in the evaluation of victims of sexual abuse and recommends:
The possibility of false allegations needs to be considered, particularly if allegations are coming from the parent rather than the child, if parents are engaged in a dispute over custody or visitation, and/or if the child is a preschooler. . . . False allegations may arise in other situations as well, such as the misinterpretation of a child's statement or behavior by relatives or caretakers . . . Children who have experienced prior sexual abuse may sometimes misinterpret actions of adults or accuse the wrong person of abuse (pp. 655-656).
Wakefield and Underwager (1991) have provided preliminary guidelines for the determination of true and false accusations. They define factors behind false allegations of sexual abuse, including the character of the accuser, the persons who aid and in many cases abet the accuser, the use of leading or manipulative interrogation methods, and reliance on "behavioral indicators." To differentiate between real and false allegations, Wakefield and Underwager suggest the fact finder examine the:
1. Origin of the disclosure;
2. Timing of the allegations;
3. Age of the child;
4. Behavior of the accusing parent;
5. Nature of the allegations;
6. Characteristics of the child's statement;
7. Personality characteristics of the parties involved; and
8. Behavior of the Professionals involved.
As the public policy writer Doug Besharov advises:
To continue to ignore the present harmfully high level of unfounded reports is to court disaster. In the short run, it may be possible to avoid admitting that the reporting system has serious short-comings. In the long run, though, already-severe problems will worsen and become more visible to outsiders. As more people realize that hundreds of thousands of innocent people are having their reputations tarnished and their privacy invaded while tens of thousands of endangered children are going unprotected, continued support for child protective efforts will surely erode (1986, p. 32).
A Call For Judicial Guidelines
With the numbers of the falsely accused rising daily, it is not the mental health professionals we may look to for a way out of today's sexual abuse hysteria. By the evidentiary rulings made in these cases, it is our courts that have the best chance of addressing this difficult problem. Armed with the research described above, and two recent decisions concerning scientific and evidentiary reliability, we suggest a four-part approach to the development of judicial guidelines.
ONE The Natural History of the Accusation
At the outset of judicial proceedings, whether they take place in family court, juvenile court or in preliminary felony exam, the trier of fact would be wise to apprise her/himself of the manner and circumstances of the allegation. As Wakefield and Underwager (1991) suggest, the origin, timing and nature of the allegation must be examined. The courts should be mindful of the external and internal independence White and Quinn (1988) describe for the investigators of these accusations. The degree to which the investigators/validators may have distorted the evaluation by the pursuit of their own agenda and the contamination of the investigative process by outside data should be inquired into as well. No one person or agency is in a better position to insist upon recognition of these important factors than is the court.
TWO The Validators of the Accusation
The issue of scientific evidence and "experts" in the courts took on a new and important dimension 18 months ago. After 70 years of service, Frye v United States, 54 US App D C 46, 293 F 1013 (1923) and the "generally accepted in the scientific community" analysis for admissibility of scientific testimony was laid to rest. In an opinion marked as much by its elegant economy as by its impact, Mr. Justice Blackmun brought the foundational requirements for science in the courtroom into the 21st century.
In Daubert v Merrell Dow Pharmaceuticals Inc., 509 U S, 113 S Ct 2786, 125 L Ed 2d 469, (1993), the Court held that:
. . . the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 113 S Ct at 2795; 125 L Ed 2d at 480.
Experts, as distinct from lay witnesses, purport to offer testimony that is scientific. By the use of the adjective "scientific," Mr. Justice Blackmun wrote that the witness is implying a "grounding in the methods and procedures of science." Id. 113 S Ct at 2795; 125 L Ed 2d at 481. The word "knowledge," the Court instructed, "connotes more than subjective belief or unsupported speculation." Id. The Court made it clear that:
. . . in order to qualify as 'scientific knowledge', an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation i.e., "good grounds," based on what is known. Id.113 S Ct at 2795; 125 L Ed 2d at 481.
Because experts are permitted wide latitude in their opinions and are not required to base their pronouncements on first-hand knowledge, the Court required that "the expert's opinion must have a reliable basis in the knowledge and experience of his discipline." 113 S Ct at 2796; 125 L Ed 2d at 482. In this analysis, the courts are required to excuse proposed experts who do not have a grasp of the "knowledge and experience of [their] discipline."
Basing its rule as to admissibility on reasoning and methodology, the Court quotes from a learned treatise and offers:
Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry. Id. 113 S Ct at 2796; 125 L Ed 2d at 483.
The Court instructs that there is now a "Key Question" which must be answered and that is:
. . . whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested . . . Id. 113 S Ct at 2796; 125 L Ed 2d at 482-483.
The Court's instruction to the trial courts is that when "expert," "scientific" testimony is offered:
. . . the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Id. 113 S Ct at 2796; 125 L Ed 2d at 482
Instructing that the "focus . . . must be solely on principles and methodology" 113 S Ct at 2797; 125 L Ed 2d at 484, the Court's analysis cites to United States v Smith, 869 F2d 348, 353-354 (CA7 1989) and informs that "error rate" in the predictions and techniques espoused in the opinions of the experts must be considered. Id. 113 S Ct at 2797; 125 L Ed 2d at 483.
Grounding its admissibility analysis in the principles and methodology of science, the Court notes:
. . . that scientists typically distinguish between "validity" (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?) our reference here is to evidentiary reliability that is, trustworthiness in a case involving scientific
evidence, evidentiary reliability will be based upon scientific validity. Daubert 113 S Ct at 2795; 125 L Ed 2d at 481; n. 9.
In the difficult arena of child sexual abuse accusations, the trial court must act as the "gatekeeper" and make a preliminary assessment as to whether the reasoning and methodology proffered to substantiate the accusation are sound. The trial court must ensure that proffered testimony is relevant and reliable, and focus solely on principles and methodology, said the Daubert Court 113 S Ct at 2797, 125 L Ed 2d at 484.
Before embarking upon litigation that could ruin innocent lives, the Daubert court insisted that trial judges must condition evidentiary admissibility upon reliability which must be determined by the degree of scientific validity. Daubert, 113 S Ct at 2795, 125 L Ed 2d at 481. The guidelines laid down in Daubert serve to inform the trial courts that validators must be grounded in the methods and procedures of science, Daubert, 113 S Ct at 2795, 125 L Ed 2d at 481, and must know and base their opinions reliably on the datum of their discipline. Daubert, 113 S Ct at 2796, 125 L Ed 2d at 482. Hopefully, this will force investigators to hold closely to the empiricism and rigor of science.
THREE The Competency of the Alleged Victim
Just one year after Daubert was decided by the United States Supreme Court, a unanimous Supreme Court of New Jersey overturned the conviction of Margaret Kelly Michaels on the basis of science and reliability. The Court instructed that:
The issue we must determine is whether the interview techniques used by the State in this case were so coercive or suggestive that they had a capacity to substantially distort the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections. New Jersey v Margaret Kelly Michaels, 136 N.J. 299, 642 A 2d 1372, 1377 (June 13, 1994)
And reasoned that:
The question of whether the interviews of the child victims of alleged sexual abuse were unduly suggestive and coercive requires a highly nuanced inquiry into the totality of circumstances surrounding those interviews. Michaels 136 N.J. 299, 642 A 2d 1372, 1375 (June 13, 1994)
Drawing upon two previous U.S. Supreme Court cases which involved a defendant's Sixth Amendment right to confront witnesses against him, the Michaels Court described the alleged victims as "tainted" by the investigator/validators who sought to aid them and offered:
The interrogations undertaken in the course of this case utilized most, if not all, of the practices that are disfavored or condemned by experts, law enforcement authorities and government agencies. New Jersey v Margaret Kelly Michaels, 136 N.J. 299, 642 A 2d 1372, 1379-1380 (June 13, 1994)
Following Mason v Braithwaite, 432 US 98, 97 S Ct 2243, 53 L Ed2d 140 (1977) and Jackson v
Denno, 378 US 368, 84 S Ct 1774, 12 L Ed2d 908 (1964), the New Jersey Supreme Court insisted upon a pre-trial "taint hearing" to assess the personal knowledge and competency of child witnesses "as a predicate to the admission of in-court testimony" Michaels,136 N.J. 299, 642 A 2d 1372, 1381.
A compilation of the things the Michaels court instructed its trial judges to look for in this important assessment is as follows:
1. Failure to videotape initial interview;
2. Lack of control for outside (family) influences;
3. Absence of spontaneous recall in the supposed victims;
4. Interviewer bias A preconceived notion that alleged wrongdoer, "did it";
5. Repeated leading questions;
6. Incessant questioning, either by examiners or by family members;
7. Multiple interviews;
8. Transmission of suggestion to children, i.e. tone of voice;
9. Positive reinforcement of inculpatory statements;
10. Negative reinforcement of exculpatory statements;
11. Failure to probe outlandish statements;
12. Contact with peers and reference to their statements;
13. Use of mild threats, bribes or cajoling;
14. Vilification of alleged wrongdoer.
FOUR The Knowledge & Ability of the Attorneys Involved
This difficult area of the law requires special expertise. The cross examination and argument skills of routine criminal matters have little utility in child sexual abuse hearings. While this is fast becoming a fertile area for the malpractice specialist (Lorandos, 1994), recovery against an incompetent lawyer does little to soothe a devastated family or an incarcerated innocent.
The American Bar Association's Model Rules of Professional Conduct and Model Disciplinary Rules have been around a long time. In this difficult area of child sexual abuse accusations, it's time to start enforcing them. Rule 1.1 of the Model Rules of Professional Conduct refers to "Competence" and reads:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Model Disciplinary Rule 6-101 is entitled: "Failing to Act Competently" and reads:
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances. . . .
The case law from around the country is replete with examples of clients suing their former attorneys and winning on issues of competence. For example:
A lawyer must adequately prepare with respect to the reasonably discoverable facts in a case. Florida Bar v Morales, 366 So2d 431 (1978).
If a lawyer is unfamiliar with an area of law, he or she must study the area in question in order to become competent. in re Green, 276 Or 1117, 557 P2d 644 (1976).
A lawyer must be versed in the relevant law which should be determined through standard research techniques. People ex rel Goldberg v Gordon, 199 Colo 296, 607 P2d 995 (1985). Bernstein v Oppenheim & Co P.C., 554 NYS 2d 487, 160 AD 2d 428 (1990).
Finally, as is the case with the experts who wish to offer testimony as to whether the child has or has not been abused, the requirements of Daubert for real expertise may be seen to apply to the attorneys as well. For as this area requires specialized knowledge to properly represent the families involved, so the case law finds a newly emerging duty for the attorney to call in a specialist when she is not up to the task. See, e.g., Horne v
Peckham, 97 Cal App 3d 404, 158 Cal Rptr 714 (1979) and Procanik v
Cillo, 206 NJ Super 270, 502 A 2d 94 (1985).
This article has explored 10 myths associated with sexual abuse evaluation and diagnosis. We hope that the explication of these myths and the scientific literature in this area will aid the families, care givers and judicial officers who find these dramatically difficult cases forced upon them. It is hoped that the four suggested areas for judicial guidelines will help our courts put an end to the devastation and trauma of legal battles grounded in superstition and myth.
Demosthenes Lorandos is a clinical psychologist and attorney at 7465
Valley Forge Road, Brighton, MI 48116. Terence W. Campbell is a
clinical psychologist at 36250 Dequindre, Suite 320, Sterling Heights,