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Psychological Evaluation of an Alleged Sexual Abuse Victim by the Defense
Ralph Underwager and Hollida Wakefield*
ABSTRACT: A psychological evaluation of the alleged
victim by the defense can be useful and important in cases of child sexual
abuse. A motion for such an evaluation along with the Appellate
Court Ruling is presented here. In this case, the evaluation was
conducted and the defendant was acquitted in the criminal trial.
Based upon our experience in over 300 cases of
accusations of child sexual abuse where we have provided consultation and
expert witness services we strongly recommend the defense pursue a
psychological evaluation of the children involved in the accusation.
The
recommendation and the observations we make are based upon that experience
as well as our document review from a large number of other cases where we
have not provided expert witness services.
In most instances an accusation of child sexual abuse
causes an immediate separation of the child and the accused. The child is
under the control of parent(s) and the state operating through child
protection services, law enforcement, and the County District Attorney's
office. Usually the child is interrogated, evaluated, and then treated by
social workers, psychologists, or psychiatrists. Often there is an
interview and a physical examination by a physician. Parent(s) are heavily
involved in this process and often are present in sessions between the
child and other adults. Parent(s) give a history of behaviors by the child
which may support the allegations and how they came about. There may or
may not be audio- or videotapes of interviews or therapy sessions. Ordinarily there will be reports of psychological and/or physical
evaluations and some information about any therapy in
which the child is placed. Throughout this process, the accused and the
attorney defending against the accusation are most often denied any access
to the child.
The stated aim in preventing contact with the child by
the accused is to protect the child from any further abuse or possible
intimidation by the person accused. However, when exclusion from contact
with the child includes grandparents, other relatives, friends, and even
the child's pastor or rabbi, the purpose looks more like protecting the
case against the accused than protecting the child. Through this the child
is kept within an environment where everybody may be supporting and
reinforcing the maintenance of the accusation. Two key issues are raised
by this process that are vital to the determination of the facts. The
first is the competency and develop-mental level of the child. The second
is the nature and the extent of adult social influence exerted upon the
child.
The issue of the child's competency and capacity is
seldom considered or evaluated by the state's experts. From the beginning
there is the assumption of competency and the avoidance of assessment that
might raise a question about competency. In several cases, after reviewing
documents made available to us, we thought there was a strong possibility
that the child was developmentally delayed. Indeed, when we assessed the
intellectual capacity of the child, using standard evaluation procedures,
the level of retardation was extremely important in weighing the child's
level of competency and vulnerability to social influence. Conversely, we
have had a case where a social worker claimed a four-year-old child's
advanced language and verbal level meant she had been taught by her
parents to deny the abuse because otherwise she could not have talked as
she did. When we tested the child she proved to be in the superior range
of ability, and her apparently advanced language was simply reflecting her
superior ability.
The factor of adult social influence upon a child is
seldom acknowledged by those who control the child and deny access to the
accused. Two unfortunate consequences of this blind spot are, first,
nobody guards against adult influence that may prevent a child from
making a reliable account, and, second, it is difficult to find out how
much influence has actually gone on. This lack of information decreases
the accuracy of any effort to weigh a child's account.
Always Request a Psychological Evaluation
We advise attorneys and accused to request of the court
or any other authority a psychological evaluation by an expert the defense
has confidence in and has selected. We have reservations about the
possibility of finding a truly neutral, independent expert to conduct what
is thought to be an objective examination. Our reservations are based upon
the highly politicized and conflicted nature of the professions involved
in evaluating accusations of child sexual abuse. Attitudes have polarized
to the extent that it is difficult to be neutral and fair. One side or the
other will attempt to influence, criticize, attack and seek to demean
anyone who does not agree with' their position. We have chosen as a
society to deal with accusations of child sexual abuse within our
adversarial system of justice. For better or worse, that is where we are.
We think it is likely to produce the fairest and most objective results to
be open about the adversarial relationship, work within it in a
responsible fashion, and avoid the illusion of thinking a truly neutral
and objective evaluation is possible when it may not be.
The state or individual who controls access to the
child usually does everything possible to prevent a psychological
evaluation by the other side. The arguments advanced for refusing are that
it will hurt the child, that it is unnecessary or irrelevant, and that the
defense expert or the accused may intimidate or threaten the child. There is no scientific
evidence to support any of these assertions.
In every instance where we have evaluated children, the
therapists, social workers, or attorneys have claimed it would damage the
child. All of the evaluations have been taped and there is no evidence of
any damage. In all cases but one, somewhere in the process the child's
behavior includes affection and openness or the children say they like the
evaluator, they are having fun, or they want to come back and are sorry to
leave. When evaluating a series of eight children, the therapist for all
eight had written the judge saying the children were frightened and needed
to bring a large stuffed dog from her office as a symbol of security and
safety. Shortly after beginning the first session with an eight-year-old
boy, who responded well to our approach of giving him some power in the
situation, the boy looked at the dog, said, "I don't need that,"
threw it to the side, and continued happily for the rest of the session.
No other child retrieved the dog from the corner.
The necessity and relevance of an evaluation are dealt
with in the briefs that follow. It is stretching credulity to present a
competent psychologist as so devious or psychopathic that there would be a
malicious or deliberate effort to intimidate or coerce a child. Taping the
process also gives assurance that such foolish behavior will not happen.
We include the brief prepared by a defense attorney for a psychological
evaluation by us. The trial judge granted it. The state appealed.
The Appellate Court upheld the
discretion of the trial judge but mandated that the evaluation must not be
in the nature of a deposition and ordered the trial judge to impose limits.
Following the Appellate ruling, the limits set by the trial judge were
that the sessions could not exceed three hours, they must be videotaped,
the mother's attorney must be present at all times, the child must not be
questioned as if it were a cross examination, and the father would be
permitted ten minutes to be observed interacting with the children.
STATE OF MINNESOTA
COUNTY OF RAMSEY
State of Minnesota,
Plaintiff,
vs
John Doe,
DEFENDANT.
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DISTRICT COURT
SECOND JUDICIAL DISTRICT
C. A. File No.: XXXXX
D. C. File No.: ZZZZZZZ |
ADDITIONAL DISCOVERY REQUESTS
TO: The above-named Court and the Assistant County
Attorney of Ramsey County.
PLEASE BE INFORMED THAT the above-named DEFENDANT, by
his attorney, requests the following discovery:
1. Independent Psychological Examination
The defendant hereby moves the Court for an order
granting an independent psychological examination to be performed by Dr.
Ralph Underwager, at the Institute for Psychological Therapies. Said
motion is based upon the following:
| a. |
No psychological harm to the child will occur as a
result of said examination. |
| b. |
The psychological evaluation will aid the Court in
the determination of competency. It will aid the Court in determining
whether the memory of the child is true or implanted by suggestion. |
| c. |
The State has indicated in its answer to the
defendant's request for disclosure that it may offer evidence
of "child abuse syndrome." Child abuse syndrome is based upon the
subjective interpretations of a child's behavior. To allow a psychologist
to give expert opinion without the ability of an independent psychological
examination by the defense will mean that only the State will be allowed
to put on "scientific" testimony. |
| d. |
This is a case in which there is scant evidence and
therefore the testimony of the alleged victims will be crucial:
| i. |
No physical evidence. |
| ii. |
Recantation occurred without any contact with the
defendant, the defendant's family, or the defendant's agents. |
| iii. |
All of this occurring during the time of a divorce
and child custody dispute which raises automatic questions of implanting
thoughts by one parent against the other. Child sex allegations during
custody disputes have been found in psychological studies to have the
highest percentage of false claims. |
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| e. |
The defense simply cannot trust the State to divulge
all information. |
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The State has indicated in its answer to the
defendant's discovery requests that: "The State will disclose all
notes of John Olson, Dr. Jean Adams, and Dr. Carolyn Stearns that are
acquired by the State or its agents or materials expected to be relied as a
basis for expert testimony."
Neither the State nor the psychologist have proven to
be reliable conveyors of information relevant to the defense. The State
now knows that there has been recanted testimony by virtue of the
prosecutor's notes from a telephone conversation with Dr. Adams. It is
important to note that the defense only received these notes upon specific
request for them and that Dr. Adams's report did not indicate any
recantation by the alleged victims. Furthermore, it is clear from the
State's answer quoted above that it will not hand over all notes by the
doctors nor seek to obtain all notes by the doctors for fear that it might
have to hand them over. Instead, it will only hand over those notes that
they have "acquired" already and that the doctor "expects
to rely upon as a basis for their testimony." That means that if a
doctor does not expect to rely upon the fact that a child recanted his
testimony, it would not tell the defense about that recantation and it
would thus be hidden.
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| f. |
The defense further bases its motion upon testimony
adduced at the hearing and briefs to follow said hearing. |
2. The defense hereby gives notice of motion and motion
that it will ask for jury instruction indicating that the State objected to
an adverse or independent psychological examination and the Court refused
to order said examination and it is for that reason that the defense has
not put on any expert testimony as to the observed behavior of the
children.
3. If the Court refuses to order an independent
examination by Dr. Underwager, the defense herein moves to have the
results of the polygraph examination of the defendant admitted into
evidence. The defense bases this motion upon the fact that the polygraph
examination was:
| a. |
Performed at the State's request. |
| b. |
Performed by the State's own polygraph examiner of
his choice. |
| c. |
This examination would simply be used as expert
opinion [to] contradict the State's expert opinion as to guilt. While the
psychologist[s] will not be able to testify as to the guilt or innocence
of the defendant, their opinions will, in effect, indicate whether or not
they believe the defendant to be guilty or innocent. It would be unfair to
have this type of expert "scientific" opinion without the
defense's ability to contradict it with the State's own tests of the
defendant. |
4. The defense hereby moves for authorizations allowing
the defendant's and Dr. Underwager's Institute of Psychological Therapies
to interview all individuals who have interviewed the children in
question. Said authorization should specifically waive any
physician/patient privilege or psychologist/ psychiatrist privilege.
It
has come to the attention of the defense that Dr. Adams will still refuse
to transfer information to the defense without a court order. The defense
herein specifically requests a court order as follows:
| a. |
Ordering that all notes, reports, test results,
statements, and other information in the files of Dr. Adams, Dr. Olson, and Dr. Stearns be made available for
the defense for review, copying, and reproduction.
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| b. |
That Dr. Olson, Dr. Adams, and Dr. Stearns also make
themselves available for interview by Dr. Underwager or psychologist
Hollida Wakefield. |
| c. |
That the requests for information in this subsection
shall include any and all contact with or concerning the alleged children.
This includes contact regarding this event as well as contact with regard
to two prior allegations of sexual abuse made against two other
individuals in the past, as well as any psychological, medical,
therapeutic, or psychiatric information on these children. |
| d. |
That if the experts of the State refuse to hand over
the ordered material to the defense, that their testimony be refused by
the Court at trial. |
5. The defendant hereby moves the Court for all notes
and records held by psychologists and psychiatrists concerning Ms. Jane
Doe, the natural mother of the children in question. The defense bases
this request upon the fact that the mother has been going through therapy
for many years, and that she is involved in a difficult and vindictive
child custody fight at this time with the defendant. It is the expert
opinion of many psychologists (defendant will put psychological testimony
on at the hearing on this matter) that the psychological balance of the
mother will contribute to the memory or false memory of the child. If the
mother has a certain personality type, there is a high likelihood that she
will have implanted, by suggestion or otherwise, the false accusations
into the mind[s] of the children.
Dated: February 10, 1988
Respectfully submitted,
Alan D. Margoles
Attorney for the Defendant
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MINNESOTA
IN COURT OF APPEALS
C-XX-ZZZ
Ramsey County
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Thoreen, Judge |
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State of Minnesota
Appellant,
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Hubert H. Humphrey, Ill
Attorney General
Tom Foley
Ramsey County Attorney
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vs.
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John Doe,
Respondent |
Alan D. Margoles
St. Paul, Minnesota
Filed July 26, 1988
Office of Appellate Courts
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SYLLABUS
1. The trial court did not abuse its discretion in ordering adverse
psychological examinations of the children, alleged victims of sexual
abuse.
2. The trial court abused its discretion in failing to place
restrictions on adverse psychological examinations of alleged victims of
child sexual abuse.
3. The "critical impact" standard does not apply to this
prosecution appeal of a pretrial discovery order.
Affirmed and remanded.
Heard, considered and decided by Huspeni, Presiding Judge, Norton,
Judge, and Thoreen, Judge.
OPINION
THOREEN, Judge
This appeal is from a pretrial order for psychological examination of
two of the children of respondent John Doe. The children are the alleged
victims of sexual abuse by Doe. The examination is to be conducted by
respondent's expert witness. We affirm and remand for restrictions on the
examination.
FACTS
Respondent John Doe is charged with four counts of second degree
criminal sexual conduct against his daughters, C. D., age six, and T. D.,
age four. The acts of sexual contact are alleged to have occurred between
July 1 and October 31 of 1987.
The children, who were involved in two earlier reports
of sexual abuse in 1983 and 1985, reported abuse by their father in a
therapy session in October21, 1987, with their brother's therapist, Dr.
John Olson. The girls saw a therapist, Dr. Jean Adams, on October
26, 1987,
and were referred to Dr. Anna Stearns for an examination, which took place
November 18, 1987. At each of these sessions they made statements
detailing sexual abuse by their father and a John Smith, an employee of
Doe's who was staying at his house.
Doe's wife, Jane Doe, lives with the children next door
to Doe in the other half of their duplex. According to the family court
file they were separated in July, 1987, with Doe enjoying visitation until
the sexual abuse charges surfaced in October 1987. The complaint was filed
on January 11 prohibiting any contact with the children.
Doe sought a court order for an independent
psychological examination to be conducted by Dr. Ralph Underwager. A
hearing was held on the motion at which Dr. Underwager testified, as well
as the children's family court guardian ad litem.
The guardian ad litem, Deborah Smith, testified she
believed an independent psychological examination would not harm the
children. She was a volunteer guardian, working on her second case.
She
had interviewed the children and watched them interact with each of the
parents. She had talked with Dr. Underwager and his colleague, Hollida
Wakefield, and had read their book, Accusations of Child Sexual Abuse.
She
has no training in psychology and does not know how extensive an
examination would be.
Dr. Underwager expressed disagreement with the
evaluation techniques of Drs. Adams and Stearns. He criticized their
evaluations as assuming from an early stage that sexual abuse had
occurred. He testified that an interviewer can exert a strong influence on
children, giving positive reinforcement of statements of sexual abuse and
negative reinforcement through the removal of the "noxious
stimulus" of repeated questions on that subject. Dr. Underwager
advocated a technique of "free recall," allowing children to
produce statements with minimum adult social pressure.
Dr. Underwager identified several
"indicators," present in this case, showing the need for a
independent psychological examination: 1) no physical evidence of abuse;
2) no fear of the alleged perpetrator; 3) allegations surfacing in the
midst of a bitter custody battle; and 4) recantations by the children.
He
also cited indications from the previous sexual abuse reports that the
mother, Jane Doe, is obsessed with the possibility of sexual abuse. Dr.
Underwager also cited, from the videotaped interviews by Drs. Adams and
Stearns and from their reports, "very overt and repeated indication
of adult social influence." He testified Dr. Stearns used leading
questions and repeated questioning to elicit statements of sexual abuse.
He also testified the girls' continuing therapy with Dr. Adams was
reinforcing a belief that abuse occurred and could destroy any memory the
children had of the real event.
Dr. Underwager testified an independent examination
could help sort out learned and suggested memory from real memory. He
stated such an examination would require three separate interviews for
each child, a one-on-one interview and an interactive interview with each
parent. He estimated the total interview time at four or five hours.
Dr. Underwager testified children up to the age of ten
are generally not competent to testify because they cannot think
abstractly, and therefore cannot deal with the concept of truth. He also
testified there was no evidence of harm from interactive interviews
involving the parents.
The file includes some information concerning previous
charges of sexual abuse of the children, a 1985 charge of sexual abuse by
a babysitter and possible abuse by Doe's brother-in-law in 1983. A summary
of the investigation states:
Dr. Stearns felt [C.D.] had a "strong
imagination" and was not able to confirm the Does suspicion of sexual
abuse. During the current investigation *** , we had the feeling that the
Does are are overly concerned about possible sexual abuse. Mrs. Doe
questions her children weekly about, "has anyone touched you?"
If their behavior is at all questionable, she suspects sexual abuse.
Mr.
Doe made a statement to us on 1-7-86, that [T. D.] has even accused him of
touching her.
The State opposed the motion, without presenting
testimony. A psychological evaluation, by Dr. Adams, showed C. D. to have
superior intelligence, and to be verbally fluent despite brief absence
seizures. The evaluation indicated T. D. has above average intelligence.
The court granted the request for an independent
examination without findings or restrictions on the scope of the
examination. A motion to discontinue the children's therapy with Dr. Adams
was denied.
ISSUES
| 1. |
Did the trial court abuse its discretion in ordering
the examinations? |
| 2. |
Must the State show allowing the examinations will
have a "critical impact" on the trial?
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ANALYSIS
The State contends it was an abuse of discretion to
order an adverse psychological examination. Cf. State v. Holmes, 374 N.W.
2d 457, 460 (Minn. Ct. App. 1985), pet. for rev. denied (Minn. Nov.
26, 1985)
(no abuse of discretion in denying adverse psychological evaluation of
victim); State v. Sullivan, 3260 NW. 2d 418, 423 (Minn Ct. App. 1985),
pet. for rev. denied (Minn. Apr.12, 1985) (decision to order examination
to determine child's competency was within trial court's discretion).
Doe
argues the examination would not harm the children, and would provide
information helpful to a determination of competency and to the
factfinder's assessment of the weight and credibility of their statements.
Doe contends parts of the State's brief, concerning the adverse nature and
possible harm from the examinations, should be stricken. However, these
statements can be considered as argument, rather than factual assertion.
Case law supports a concern about possible harassment of, or harm to,
victims through adverse examinations. See, e.g., Holmes, 374 N.W. 2d at
459 (gynecological exam of child sexual abuse victim).
This court has reversed an order allowing the
deposition of a witness in a criminal prosecution. City of
Bemidji v. Harr, 368 N.W. 2d 359,360 (Minn Ct. App.
1985). We have reversed an order allowing an adverse physical examination
of a child sexual abuse victim. State v. Garrett, 384 N.W. 2d
617, 619
(Minn. Ct. App. 1986), pet. for rev. denied (Minn. May 29,1986). No error
was found in denying a psychological examination. Sullivan, 360 N.W.
2d at 423;
see also Potter v. State, 410 N.W. 2d 364, 369 (Minn. Ct. App. 1987)
(denying post-conviction psychological examination). We have found no
authority stating it is beyond the trial court's discretion to order an
adverse psychological examination. Courts in other jurisdictions have
allowed such an examination upon showing of "compelling reasons"
or upon a "substantial showing of need." State v. Buckley, 325
NW. 2d 169, 171 (N.D. 1982); State v. Logue, 372 N.W. 2d 151, 155 (S.D.
1985).
We conclude the trial court did not abuse its
discretion in ordering the examination. The facts that may justify an
adverse psychological evaluation in this case are the prior allegations of
abuse, viewed with suspicion by child welfare workers, and the mother's
perceived "obsession" with sexual abuse. Parental influence is
suggested in the reports, but it may be difficult for a defense expert to
probe such influence based on the reports alone.
We do not attempt to formulate a standard allowing
adverse psychological examinations of child sexual abuse victims. Some of
the reasons advance in this case, however, must be rejected as
insufficient. The fact the children have at times recanted is not
sufficient grounds for an examination, since it is a frequent
characteristic of child abuse victims. See State v. Myers, 359 N.W. 2d
604, 601 (Minn. 1984). Similarly, a lack of fear of the perpetrator,
especially the child's own parent, is not uncommon. See id. (child
confused by caretaker or parental abuse, unsure of the criminality of the
conduct). Also, a child may allege abuse during a custody dispute because
this is the first period of separation from the abuser. See State v.
Garden, 404 N.W. 2d 912, 914 (Minn. Ct. App 1987) pet. for rev. denied
(Minn. June 25, 1987). Finally, allegedly suggestive interviewing methods
do not by themselves justify an adverse examination. Cf. State v.
Carver, 380 N.W. 2d 821, 826 (Minn. Ct. App. 1986), pet.for rev. denied (Minn. Mar.
27,1986) (children's hearsay statements to doctor not sufficiently
reliable where children interviewed together and asked leading questions).
We note that, although Doe attempts to characterize the
requested examination as a competency examination, he does not challenge
the intelligence testing showing the children as very intelligent. The
tests, along with the interview report, would seem to indicate the oldest
child at least would be competent to testify. Moreover, Dr. Underwager's
testimony inferring children under the age of 10 are generally not
competent because they cannot deal with the abstract concept of truth, is
contrary to the statute. See Minn. Stat. §595.02, subd. 1(f) (1986)
(child under 10 is competent unless court find otherwise).
Dr. Underwager in his testimony expressed a strong
disagreement with the interviewing techniques of the State's experts, Drs.
Adams and Stearns. His view is the children's allegations were made under
adult influence, reinforced by interviewing techniques and by continuing
therapy. See State v. Lau, 409 N.W. 2d 275, 276-77 (Minn. Ct. App. 1987)
(Dr. Underwager testified five-year-old was unable to relate truthfully
what occurred due to inability to understand abstract concepts, use of
leading questions and other poor interviewing techniques, and prior learning about
sexual abuse). Despite his concern about suggestive and reinforcing
methods by the State experts, Dr. Underwager proposed to interview the
children only by nonintrusive, "free-recall" method of
evaluation. It is unclear how such an examination could "Produce a
maximum reliable statement," on whether abuse occurred, as the
defense proposes, without an attempt to remove the suggestions and
reinforcements previously implanted, according to Dr. Underwager.
The trial court has the authority to regulate discovery
in a criminal case by restrictions of time, place, and manner. Minn. R.
Crim. P. 9.03, subd. 3. The trial court here abused its discretion in
imposing no restrictions on a matter as delicate as adverse psychological
examination of child sexual abuse victims, given this strong disagreement
over methodology. The order would in effect allow the defense expert to
depose the children, challenging their reports of abuse and the influence
of their therapist. Cf. Harr, 368 N.W. 2d at 360 (criminal rules do not
allow deposition of witness in criminal case except for unavailability).
The examiner should be limited to nonintrusive
examination which does not approach the scope of a deposition. The
examiner should not be permitted to attack the interviewing techniques of
the State's experts through the children. In light of the previous
no-contact order, the court should specifically review whether the
interactive interview involving Doe should be allowed.
II.
Doe argues this appeal should be dismissed because the
State has not shown the order allowing the adverse examinations will have
a critical impact on the outcome of the trial. See State v. Joon Kyu
Kim,
398 N.W. 2d 544, 550-51 (Minn. 1987). The Supreme Court has discussed the
"critical impact" standard as one applying to appeals from
orders suppressing evidence. See id.; State v. Webber, 262 N.W.
2d 157,
159 (Minn. 1977). The "critical impact" standard for prosecution
appeals from pretrial suppression orders. See Webber, 262 N.W. 2d at 159
(citing repealed section 632.12). Under the former statute, a discovery
order was not among pretrial orders listed as repealable. Minn. Stat.
§632.11(1974) (repealed). The rules now make all pretrial orders except
dismissals for lack of probable cause, appealable by the State. Minn. R.
Crim. P. 28.04, subd. 1(1). Thus we find no indication the "critical
impact" standard was meant to apply to discovery orders. See Harr,
368 N.W. 2d at 360 ("critical impact" standard does not apply to
prosecution appeal of discovery order).
DECISION
The trial court did not abuse its discretion in ordering adverse
psychological examinations. Failure to place any restrictions on the
examinations was an abuse of discretion, and the case is remanded for
protective order.
Affirmed and remanded.
John F. Thoreen (signature)
July 15, 1988
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Conclusion
The psychological evaluations were conducted under the
limits imposed by the trial judge. They were videotaped and copies of the
videotapes were delivered to the prosecutor. We testified in the criminal
trial, in part, on the basis of the evaluation. A rebuttal witness brought
in by the state commented upon the videotapes of our sessions with the
children. She said she saw the relationship with the children as warm and
friendly. The only criticism she made was that she thought we should have
repeated some of the psychological tests given to the children about six
months earlier. In cross examination she accepted and agreed with the
testimony we had given based upon the evaluation.
The jury acquitted the accused after two hours of
deliberation.
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* Ralph Underwager is a
licensed consulting psychologist and Hollida Wakefield is a
licensed psychologist at the Institute for Psychological
Therapies, 2344 Nicollet Avenue South, Suite 170, Minneapolis,
Minnesota 55404. [Back] |
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