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

Part III: Defense Strategies for the
Falsely Accused Individual

Louis Kiefer^*

ABSTRACT: Although the false allegation of child sexual abuse does not always start with a child, the child becomes the key to unlocking the mystery of how the allegations came to be made.  The following article is the third of three parts and deals with the anatomically correct dolls, strategic planning and the child as a witness at trial.  Part III is directed towards recommended strategies for an individual who has been falsely accused of sexual abuse.
  

Anatomically Correct Dolls

"Anatomically correct" dolls are used in almost all cases involving young children.  It should be noted that if, as it is claimed, the child is competent to testify, having the ability to receive correct impressions by his senses and to recollect and narrate intelligently, the dolls are unnecessary.

The dolls are generally about 20 inches in length, the mature females protrude breasts, the man and boy child have penises.  The female dolls have oral, anal and vaginal openings.  The man and women dolls have public hair either of dark embroidery or fur.  The dolls have fingers.  Police officers, social workers and even psychologists believe that by carefully observing how a child plays with the dolls, they can determine whether, when, where, how and by whom a child has been molested.  Take for example, the following report by a therapist describing how the child clearly named with the use of the dolls her father as the perpetrator of child abuse:

... I introduced the anatomically correct dolls and then asked her to pretend the girl doll was herself.  When I asked who the male doll was, she unhesitatingly said: 'Daddy.'  When asked to demonstrate with the dolls what daddy had done, she inserted the male doll's finger into the vagina of the girl doll.  She then showed the dolls kissing.  After much hesitation and seemingly embarrassed, she took the female doll and straddled the lap of the male doll in such a way as to show that the male doll and female genitalia were touching.  She then turned the female doll around and sat her in the opposite direction.  She then said she didn't want to talk about it anymore.

"The fact is that normal children know a doll is a plaything, not a person, and their behavior when playing with a doll has nothing to do with their own real-life experiences.  Little Sally might throw her doll on the floor and step on it, although she never acts like this with her baby sister.  Little Sidney might twist the doll's head around to see if it comes off, although nobody has ever twisted his head in his life.  Yet, untrained state personnel hand a preverbal or barely verbal child one of these dolls with its huge, bulging genitals ("anatomically correct" dolls are anatomically complete, but not anatomically correct), and believe that if the child even notices the genitals that he or she is "acting out sexual abuse."(1)

It should be noted that these dolls are made by toy manufacturers.  They are not made by the people who make scientific instruments but by people who make toys.  They are sold, not by established organizations who sell such things as the MMPI, the Stanford-Binet IQ test, or the Rorschach test, but by people who are in business to manufacture this type of toy.

As Mclver, Wakefield and Underwager have stated: "Our results suggest that the information obtained by the use of these dolls in interviews is misleading.  The dolls are likely to increase the error and decrease the reliability of the information gathered.  Any information obtained from such interviews should be discarded.  There is nothing to support their use as diagnostic or assessment tools. ... The dolls are not generally accepted in the scientific community and nothing obtained from their use should ever be admitted into evidence. ..."(2)
  

Protocol

The scant instructions on how to use the dolls are so suggestive, not only to the child but to the interviewer, that both embark on a journey of self deception.  For example, one so-called expert suggests that the collection of dolls should have four — mother, father, boy, and girl doll.  Even if there were some validity to the interpretation of doll use, limiting the use to one "daddy" doll selectively steers the doll to Daddy rather than to a choice of other significant and likely candidates, such as the live-in boyfriend or teen-age neighbor.

In playing with the dolls, it is not uncommon that the young child creates a nuclear family even though the real father has not spent ten seconds with the ex-wife in the last three years.  Fantasy becomes fact.

Dr. Susan White suggests a protocol (3) for the use of dolls where the interviewer is "blind."  Information as to who the child first named and other information is withheld from the interviewer so that suggestions and prompting can be avoided.  This is aimed at preventing the interviewer from influencing the child.  This protocol is seldom used because, in those cases of false allegations, the use of the dolls would not have any value.  A child with nothing to report will report nothing.  This, of course, spells failure on the part of the interviewer who wants to save the child.  Therefore the protocol, because of its reliability, will not be used.

The Mclver, et al. study (4) reported several important findings concerning the basic assumptions underlying the use of these dolls.  Among them were the following:

(a) There is no empirical evidence for the assumption that "Children will identify gender (or the 'sex' of the dolls) on the basis of primary sexual characteristics rather than on the basis of their clothing."

Although I presume the study did not involve a group of children of nudists, it makes sense that children as well as adults do not examine genitalia of strangers to determine sex.  Adults make the determination without removing the clothing of strangers, and yet, the interviewer using the dolls will often suggest, "Let's take the pants off to see if the doll is a boy or a girl."

b) There is no empirical evidence supporting the assumption that: "Children will not demonstrate, either spontaneously or in response to the interviewer's verbal and/or nonverbal cues, sexual acts that did not occur."

Indeed the evidence is that the dolls in and of themselves are suggestive.  This is known as the "doll effect," that is, the use of the dolls in and of themselves, creates behavior which is then interpreted as being evidence of abuse.

c) There is no empirical evidence for the assumption that "The things nonabused children do with these dolls will be different from the things abused children do with them."
  

Defense Strategy

The defense of a false allegation of sexual abuse is unlike anything either you or your attorney has ever seen.  It is not a battle, it is a war, and as a war it needs money, soldiers, a will to fight, and strategic and tactical planning.  The following list of considerations is set forth neither in importance nor in a chronological order, as many of the actions should be implemented at the same time.  The outline is limited, and does not involve such things as choosing an attorney, preparing an alibi defense, or many of the other elements which go into a successful defense strategy.
  

1. Do not act guilty.

Fleeing from the scene of a crime has traditionally been considered as evidence of guilt.  If you "agree" to make certain concessions, such as no contact "until this matter can be looked into," your guilt, rather than your willingness to cooperate, will be presumed.  If someone were to publicly call you a crook, if a newspaper were to run an article saying false malicious things about you, what would your response be?  Unless there was some basis in fact, you most likely would be at an attorney's office demanding a retraction, and threatening a suit for slander and/or libel.  If a physician committed malpractice by wrongfully making a diagnosis, even of child abuse, based on an inadequate physical examination, again you would be seeking legal advice about a possible malpractice action.

Under the laws of slander, if one repeats a statement made by another, even if made by a child, and the statement relates to accusing one of a crime (such a child molestation) or defames one in his business or professions, the tort of defamation has been committed.  The repeating of a lie is no less harmful than the original statement.  You should go on the offensive and demand accountability.  Those well intentioned people who are accusing you of the most dastardly crime known to man must realize that there is a downside to the spreading of false and malicious statements about you.  You must remind those who would do you harm that they also must be accountable for their actions and their opinions.(5)
  

2. Do not waive any rights especially to a hearing.

You may find yourself undergoing several litigation events at the same time.  If you are a teacher accused of abusing a student, you probably will be defending a criminal action as well as seeking to retain your job.  If you quit without a hearing, the presumption will be that you are guilty.  If you are a divorced parent, you may be fighting the criminal charges, as well as a change of custody or termination of visitation proceeding.  If you are a parent of a teen-age child, you may be fighting both an abuse and neglect proceeding and the criminal charges as well.  In any of the above you may be sued for assault and battery of the child.

It is tempting to waive the rights to a hearing in one action in order to focus your energies and monies in the other action.  However, every time you give up a right to a hearing, you give up the enormous rights to (a) an official version of what happened and (b) general discovery of the case against you.  There are different rules of discovery in the criminal arena and the civil arena.  Basically you can obtain more information in the civil or family court than you can in the criminal court.  Thus if you waive any rights to proceed in the civil court, you are giving up significant opportunities to learn who the witnesses will be, and what they will say.  You will lose the opportunity to discover the details of the abuse including when, where, who, why, and who was present.
  

3. Keep contact with the alleged victim.

There are many reasons to keep in contact with the alleged victim.  If the child is your own, no matter how you feel, the child needs you.  No matter what the child says, the child will continue to need you.  Stay involved for your sake and your child's sake.  Her needs for you are certain, critical and constant.  Do not let the short-term whims of a child control her long-term needs.  Without contact the child can be brainwashed against you.  If you stay in contact, it is difficult for the child to believe what others are saying because it conflicts with the real first-hand experience of your child.  If the child is a teenager, and if the false allegation is the result of custody/visitation problems, it is easy to concede and let the child live with the other parent.  To do so, however, without a hearing, removes you from the sphere of influence and destroys any chance of having the child come to grips with what was said and why it was said.

If the situation is a divorce custody problem do not, under any circumstances, agree to have the matter continued unless visitation (supervised, if necessary) can be arranged.  If the mother wants more time, or wants time to have a psychologist do a study, it is because she needs the time to better prepare the child to testify against you.  A continuance gives her the opportunity to obtain additional "expert" witnesses and rehearse the child.  Their case gets better while your case gets worse.  There is a natural inclination on your attorney's part to want more time to study and prepare.  But unless you maintain contact with the child, there is no guarantee that the court will reassign the case within a reasonable time.  In one recent case it took two years to obtain a full hearing.  The experts then came to the unanimous conclusion that whether the three and one-half year old child was sexually abused by the father didn't matter.  Since she now believed that she was sexually abused, the father should have no contact with his daughter.

The second reason to keep contact is that your child may suffer separation anxiety if your child is deprived of contact with you. (6)  The "behavioral manifestations of child abuse" with one or two exceptions track the behavioral manifestations of parental separation anxiety.  Thus, your absence may induce behavioral indicators which will then be used as evidence that the child has been abused.

The third reason you should maintain contact is that the nonverbal reaction of the child to the pleasure to your company may be more telling of the relationship than what the child testifies to on the witness stand.  In one case, while the litigation dragged on for years, the father had illicit visitation with his daughter.  During many of these visits pictures were taken of his daughter and her father having fun.  At the trial the daughter testified how she "hated" her father for the things he had done to her.  When asked what good things about her father she could describe, she could not offer one.  When shown a picture of herself having fun with her father after the abuse is supposed to have occurred, and asked to explain the picture her response was simple: "That's not me."  With that her credibility fell to zero.

A fourth reason to maintain contact is that you may have an opportunity to have your own psychological evaluation of the child done.  Without contact you may have to rely on the psychologist chosen by the state or someone else.  If there are criminal matters pending, you may never get an independent psychological evaluation.  If your child is the victim and she has been sexually molested, you may be able to discover independent evidence as to who is doing it.  After all, everybody else may have closed the case knowing that you are guilty.  Only if you keep contact will you be able to find out who the real perpetrator is.

The final reason to maintain contact is to avoid the dilemma occasioned by the lack of contact.  Thus, if because of court imposed delays several years go by without you having seen your child, any chance of obtaining custody or meaningful visitation will be lessened because of the "shock" the child would have after not seeing you for many years.
  

4. Obtain expert psychiatric review

In addition to having a good lawyer, a competent, experienced, honest, psychologist or psychiatrist is essential.  One cannot rest on a defense that "it" (whatever "it" is) never happened and therefore I have nothing to worry about.  The mere fact that a child has allegedly said certain things that led to the conclusion of child abuse is enough for the court system to presume guilt.  It is therefore important to hire for evaluation and/or testimony an expert who can explain the origin of allegation.  It may be as simple as explaining when the child said "candle in my vagina" she was in fact describing "candies in my jamies."

One psychiatrist recently testified that the four-year-old child did say that her father was "bad" but it was in a rehearsed manner.  By observing her play (with regular dolls) he noted that the child consistently thought of the father as a protective and fun-loving individual.  He concluded that there had been no sexual abuse.

Sometimes, if visitation continues, (even chaperoned) it is possible to have the child examined privately. if that can't work, one may have to ask the court to appoint someone.  This may have risks if the court traditionally appoints a psychologist who is known to find sex abuse with every child.  Also you can be sure that the court-appointed psychologist's report, good or bad, is going to be available to everyone.  If it is against you, you will have an impossible burden.

Have a clear understanding with the psychologist in advance of the evaluation as to the protocol to be used.  Will father be able to be examined in the presence of his daughter?  Will the psychologist be able to see the child alone?  Will the mother be interviewed?  Where will be interviews take place and when is the target date for the report?
  

5. Obtain inadmissible evidence in support of your position

Many of the issues (such as interim visitation) are resolved without a trial.  Therefore it is important to secure nonadmissible evidence which can have tremendous impact on settlement discussions.  Thus, a lie detector test should be obtained at the first opportunity.  It should be done out of state by a competent lie detector examiner.  If the test is done locally, and if the test is failed, you run the risk of word getting out that the test was failed.  This may hurt you in the eyes of your attorney as well as everyone else connected with the case.  Pay the examiner by cash.  At some point, if the opposition is going through your checkbook and finds that you paid for a lie detector test and you did not reveal that you had passed it, you can be sure the opposition will discover that you had failed it.

Affidavits from friends, children, character references and the like may have value although they would not be permitted as evidence in a trial.  Hire a psychologist or psychiatrist to evaluate you to determine if you would be likely to be a child abuser.  By using standardized tests it may be possible for the professional offer an opinion as to whether you fit the classic profile of a child sexual abuser.  While there is no litmus test for such an abuser, the tests may reveal whether you have a deviant personality or poor impulse control or some of the other traits commonly associated with child abusers.  If you do not, and the person is reputable, the opinion may satisfy the attorney of the child or guardian ad litem that there should be contact pending the final hearing.  The report from your psychologist or psychiatrist may be very important on the issue of contact with the child pending a full hearing.
  

6. File a responsive pleading

Very often, especially if viewed in the context of a divorce proceeding, the allegations have been made in an affidavit in support of an application for an ex parte custody/visitation order.  The affidavit and application contains all sorts of hearsay, nonexpert opinion, statements which the child is supposed to have said, and claims made by physicians and others.  That document sits in the file and every judge who picks up the file reads the document and decides that you are guilty and then makes all decisions about how the case will be handled, including when and whether it should be set down for trial.

Although the rules of practice do not require a responsive pleading, they do not prohibit it either.  Consequently you may file your own affidavits in support of your position, as well as a memorandum and any other evidence.  Once you and your attorney have a theory of the case, it is important to balance the file with your own version.  Only then will you gave a chance of obtaining a meaningful hearing at a meaningful time.

However, you must be sure of the theme of your defense before you file a responsive pleading.  Otherwise, if you act too quickly, and have one theory only to find that there exists a better theory, the judge will presume you will take any convenient theory.  For example, the theory of the defense may be that the child was abused but you didn't do it.  Upon further investigation you decide that the child wasn't abused.  If your initial responsive pleading admits the child was abused, the judge is going to be hard pressed to now find that the child was never abused.  If the theory is that the child's sexually transmitted disease was acquired nonsexually, for you later to decide that (a) the test was invalid or (b) she was abused by someone else with the disease will leave you without a solid position.  It is better to save your options and not file a responsive pleading than to file one based on a theory which you later abandon.  Nevertheless, one can not underestimate the impact that the initial pleading has against you nor overestimate the impact that your responsive pleading may have for you.
  

7. Gather intelligence

Knowledge is power.  It is absolute essential that you learn as many facts as is possible and keep them in a manageable form.  The gathering of intelligence can provide two things.  It can show that the story as told by the child could not have happened as described because of the impossibility of the event.  For example, it can affect the credibility of the child who testifies that the door was locked, when the door never had locks.  Also, through careful investigation, you may be able to determine the origin of the thought which went into the complaint.
  

Photographs, engineering diagrams

One parent was accused of sexually fondling a neighbor's child in a tool shed.  It sounded plausible, as the place was private, and it was near the home of the child.  One photograph of the floor to ceiling junk without room for one person to stand was sufficient to show that the child could not have been telling the truth.

Teenagers often report having been raped in the bathroom.  I presume it is possible to be raped in a bathroom, although there are many bathrooms which are simply too small.  The best evidence of the size and shape of the bathroom is a photograph, or a floor diagram.  Asking the child to demonstrate, with scale figures where each person was during the act may make the whole thing preposterous.

In another case the children were able describe sexual acts with graphic detail.  How else could the children know such things if it had not happened to them?  The mother denied that the child had ever seen any adult sexual behavior.  Explaining the origin of the knowledge was difficult until it was discovered that the children's bedroom was over the mother's bedroom and that there was a hot air grate in the middle of the floor.  After the mother vacated the apartment, the father was able to obtain access and hired an engineer to do a drawing (and photographs) of the room showing the optical zone from the upstairs bedroom.  That was sufficient to explain how the children had acquired the specialized knowledge.
  

Medical records, medical experts, psychological reports

It is also important to obtain the medical reports and psychological reports.  If there is medical evidence, you may have to contact an expert in the medical field to be able to understand the significance of the medical reports.  In one recent case the child was diagnosed as having chlamydia.  That was enough for the doctor to conclude abuse.  However, after the defense lawyer spent some time in a medical library, it was apparent that the doctor used a test to discover chlamydia which had not been approved by the manufacturer for use on children, had not been approved by the FDA, was contrary to Surgeon General's Protocol on clinical investigation of abuse and was generally considered an unreliable test.

In another case, the child had contracted gonorrhea.  Both the mother and father were positive for the disease.  The boyfriend produced a lab slip showing he was negative.  The defense lawyer hired a pediatric physician and reviewed the conflicting literature about whether gonorrhea can be contacted nonsexually.  As the attorney was leaving the office, the expert added: "By the way, if the boyfriend had intercourse twice with the mother, he also had gonorrhea, and I don't care what the lab report says."  The attorney then continued his search for medical records and sure enough the boyfriend was diagnosed and treated for gonorrhea on the same day as the child.

An examination of the psychological reports often contain inaccuracies or misstatements.  One therapist claimed to have a tape recording of the child which clearly identified the father as the abuser.  After listening to the tape, it provided no information whatsoever.  In another case, the records were so fraught with suggestions that one could not seriously believe the child.  In that case the child was seen 72 times for therapy.  During each session the child and her therapist talked about good touch and bad touch, played sex abuse prevention games, played with the anatomically correct dolls.  Needless to say, after 72 sessions the child knew everything about sex abuse.  However, in her effort to encourage the child to talk about abuse the child, the therapist had plastered so many layers of learning over her original memory that the child had no independent recollections.
  

Depositions

A deposition is the product of having a witness sworn and asked questions which are taken down by a certified court reporter.  It is usually done in your lawyer's office and in noncriminal cases, can be done as of right.  Sometimes the court will prohibit the child from being deposed.  Nevertheless, by taking the deposition of the professional, you may be able to establish (a) the qualifications of the therapist, (b) the protocol and techniques used, (c) what the child is saying or not saying, (d) the basis upon which the professional come to the conclusion of abuse.  It is absolutely essential to depose everyone in sight to freeze the story in order to have an official story as soon as possible.
  

Stop the Counseling

Attempt to prohibit any further interviewing or treatment, except under conditions and by people who will avoid teaching the child that he or she has been abused.  Attempt to require all further interviews to be videotaped.  If the court procedure is an exercise to obtain the truth, there should be no problem with this requirement.
  

Note taking, record keeping

Start keeping notes from the first time there is a hint that you may be a suspect in child abuse cases.  It is absolutely essential that you keep the following records: (a) A calendar, (b) A diary, (c) An expense book, (d) Photographs and video recordings.

Also, if it is legal in your state, you should buy a teletaper (Radio Shack sells them) and record every telephone conversation with you wife, ex-wife, social worker, and anyone who may turn out not to be your friend.  The calendar is necessary to keep track of events, past, present and future.  You try to reconstruct you entire life as it involved contact with the alleged child victim.  For example, if you had weekend visitation and were denied visitation for the last six months (not an uncommon occurrence in this type of case) try to establish where you were and why you didn't have visitation.  If the child claims she saw you Christmas and she didn't, her credibility is suspect but only if you can prove where you were and why you didn't see her.  The calendar may be useful if you attempt to use, by way of explanation, the S.A.I.D. syndrome, developed by Dr. Gordon Blush and Karol Ross.(7)

The diary is also important for you may be accused of molesting the child even after the alleged first incident.  To this extent the more detail about where you were and what you did the better.

An expense book is important to record every dime you spend defending yourself.  You may be asking your spouse for attorney fees; you may sue the therapist for malpractice; you may sue the neighbor for slander.  If you do the expenses will be important.  Consequently not only keep an expense book; keep receipts.

Finally, a lawyer needs tools to work with.  He needs affirmative evidence.  It is very rare that he will be able to destroy all the testimony by all the witnesses.  It may be a question of who is a better witness and you may lose.  You must have something anything to provide the judge or jury with.
  

The Child Witness At Trial

If a child testifies, your attorney must be kind and gentle to the child.  Otherwise, you will be considered to be an abuser.  If, in response to questioning by your attorney, the child cries, the jury will believe that the child is frail because of the abuse.

While the attitudes of judges will vary, most will permit leading questions by both parties, will discourage objections by both parties, and will permit all attorneys to discuss anything.  Relevancy will not be grounds for objection.  Use the threshold question of competency to elicit the nature of the rehearsals and the amount of programming.  The child will not usually have been prompted on the issue of previous interrogation and the responses on this issue may, in and of themselves, let the judge make a determination as to competency.

When the child testifies, ask questions to determine the suggestibility of the child.(8)

Q: Lots of children who have been in situations like this tell me that their thumbs hurt?  Does your thumb hurt?

Ask questions aimed at discovering what children can say without it being a lie.  In one case the child was absolutely certain that she never had lied, never did lie and never would lie.  On cross examination she admitted to fibbing, not seeing this as a problem.  Thus a child may distinguish between the wrong behavior of lying, and permitted behavior, such as fibbing, telling of white lies, or telling stories.

Ask questions to suggest the possibility of confabulation.(9)

Q: Sometimes kids make up stories in their minds.  Sort of like a daydream.  Do you know what a daydream is?  After a while they think the stories are true when they were really only daydreams.  Maybe that's what you did.  Maybe what happened is sort of like in your mind and not like it really happened.  Is it like a daydream?

Sometimes listening to the child's tape recordings will give you an idea of how they distinguish fact from fantasy.  For example, in one tape, the five-year-old child said that she called her dad, "Eliot."  When the mother corrected her and said she never did, the little girl replied: "I do in my heart."  Thus, she has developed in her own mind a way of having "fabricated events" in her heart which she swears are real.

Ask questions as to the origin of the thought.(10)

Q: Maybe somebody told you to say those things about your dad.  Maybe somebody put those ideas in your head. Is that what happened?

Use toys and the unexpected to interrupt the script which the child is following.  Sometimes an attractive toy in the lap of your client will evoke behavior which overrides the fact that the child has learned to say she dislikes her father.  Sometimes asking the child what she likes about her father and her mother and her paternal grandparents will totally catch the child off guard which can lead to other questions.  Such questions will permit the jury to compare the uncertainty of the responses, the verbal and thought maturity, and affect to determine whether the previous well rehearsed story was just that a well rehearsed story.

Do not suggest that the child is lying, only that the testimony is the product of other influences.  After all, many people, judges included, do not believe that children would lie about something like this.  Ask the child to make up a story.  If the child has testified about lions, ask for a story about lions.  For all you know, the child may simply repeat his testimony because after all, it was a story which was made up.  On the other hand, the child may tell the story about Little Red Riding Hood and how her grandmother was eaten by a wolf.  Of course, how would a child be able to describe with such specific sexual detail if ...
  

References

(1)  Pride, M. (1968). The Child Abuse Industry (), p. 48, Westchester, Illinois: Crossway Books.  [Back]

(2)  Mclver, W., Wakefield, H., & Underwager, R. (1989). Behavior of Abused and Non-abused Children in Interviews with Anatomically Correct Dolls. Issues in Child Abuse Accusations, 1(1), p. 47.  [Back]

(3)  White, S., Strom, G., & Santilli, G. (1985, October). Clinical protocol for interviewing preschoolers with sexually anatomically correct dolls. Paper presented at the 32nd Annual Meeting of the American Academy of Child Psychiatry, San Antonio, Texas.  [Back]

(4)  Id., pp. 39-48.  [Back]

(5)  It should be noted that the State, and its agents have governmental immunity. A suit against them would most likely be useless.  [Back]

(6)  See generally, J. Wallerstein & J. Kelly (1980). Surviving the Breakup: How Children and Parents Cope with Divorce (). New York: Basic Books.  [Back]

(7)  The S.A.I.D. Syndrome stands for "Sexual Allegations in Divorce." Dr. Blush and Ms. Ross may be contacted at Professional Counseling Associates, 36040 Dequindre, Sterling Heights, MI. 48310 (313) 939-5110.  [Back]

(8)  Nurcombe, B. (1986). The child as witness: Competency and credibility, Journal of the Academy of Child Psychiatry, 25(4), 473-480, pp. 473, 447.  [Back]

(9)  Ibid.  [Back]

(10)  Ibid.  [Back]