Endnotes

1 Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992).  [Back]

2 Wheat v. State, Del. Supr., 527 A.2d 269 (1987).  [Back]

3 Summit, Infra note 5[Back]

4 Id. See also, Burgess and Holmstrom, Sexual Trauma of Children and Adolescents, 10 NURSING CLINICS OF NORTH AMERICA 551(1975); De Jong, Hervada and Emmett, Epidemiologic Variations in Childhood Sexual Abuse, 7 CHILD ABUSE AND NEGLECT 155 (1983); Summit, Infra note 30.  [Back]

5 Summit, The Child Sexual Abuse Accommodation Syndrome, 7 CHILD ABUSE & NEGLECT 177 (1983) at 177. See also, McCord, Expert Psychological Testimony about Child Complaints in Sexual Abuse Prosecutions: A foray into the Admissibility of Novel Psychological Evidence, 77 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 1, 20 (1986).  [Back]

6 Summit, Supra note 5 at 178 (emphasis added).  [Back]

7 The use of female pronoun is used to designate the victim and the male pronoun is used to designate the perpetrator. This is done because in cases of child sexual abuse most victims are female and the perpetrators are male. In regard to intrafamily sexual abuse most cases involve the father, stepfather or the mother's paramour. See Koszulth, Sexually Abused Child Syndrome: Res Ipsa Loquitor and Shifting the Burden of Proof, 15 LAW AND PSYCHOLOGY REVIEW 277 (1991); De Jong, Hervada and Emmett, Supra note 4. "In the current state of the art most of the victims available for study are young females molested by adult males entrusted with their care. For the sake of brevity and clarity the child sexual abuse accommodation syndrome is presented in this paper as it applies to the most typical female victim." Summit, Supra note 5 at 180.  [Back]

8 Summit, Supra note 5 at 181.  [Back]

9 Id. at 181.  [Back]

10 Id.  [Back]

11 Id.  [Back]

12 Id. at 182.  [Back]

13 Id. at 183.  [Back]

14 Id.  [Back]

15 Id. at 185 (Emphasis in original).  [Back]

16 Id.  [Back]

17 Id. at 186.  [Back]

18 Id.  [Back]

19 Id.  [Back]

20 Id.  [Back]

21 Id. at 187.  [Back]

22 Id. at 188.  [Back]

23 Id.  [Back]

24 Id.  [Back]

25 Commonwealth v. Dunkle, Supra note 1; Koszath, Supra note 7; Summit, Supra note 5; Burgess and Holmstrom, Supra note 4 and De Jong, Hervada and Emmett, Supra note 4[Back]

26 Burgess and Holmstrom, Supra note 4 at 555.  [Back]

27 Id. at 558.  [Back]

28 Id. at 555-556.  [Back]

29 Id. at 556.  [Back]

30 Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, 1(4) JOURNAL OF CHILD SEXUAL ABUSE 153, 153 (1992).  [Back]

31 Id.; See also, MacFarlane, Commentary: Summit's 'Abuse of the CSAAS ' , 1(4) JOURNAL OF CHILD SEXUAL ABUSE 165 (1992); Salter, Response to the 'Abuse of the Child Sexual Abuse Accommodation Syndrome', 1(4) JOURNAL OF CHILD SEXUAL ABUSE 173 (1993); Myers, Expert Testimony Describing Psychological Syndromes, 24 PACIFIC LAW JOURNAL 1449 (1993); Myers, Infra note 34; Infra note 40; and Infra note 41[Back]

32 Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 NEBRASKA LAW REVIEW 1 (1989).  [Back]

33 Kempe, et al. The Battered-Child Syndrome, 181 JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION 17 (1962); Myers, Supra note 32; Myers Supra note 31[Back]

34 Myers, The Tendency of the Legal System to Distort Scientific and Clinical Innovations: Facilitated Communication as a Case Study, 18 (6) JOURNAL OF CHILD ABUSE AND NEGLECT 505, 508 (1994). See Also Dunkle, Supra note 1 at 835-836; Summit, Supra note 30; and Summit Infra note 38[Back]

35 Summit, Supra note 30 at 157.  [Back]

36 As noted, CSAAS is not a diagnostic tool, nor is it a scientific tool. "CSAAS originated . . . not as a laboratory hypothesis or as a designated study of a defined population. It emerged as a summary of diverse clinical consulting experience, defined at the interface with paradoxical forensic reaction. It should be understood that the CSAAS is a clinical opinion, not a scientific instrument." Summit, Supra note 30 at 156.  [Back]

37 Id. at 158. Suzanne M. Sgroi claims to have developed a diagnostic tool, the Sexually Abused Child Syndrome, to determine whether a child has been sexually abused. See Sgroi, HANDBOOK OF CLINICAL INTERVENTION IN CHILD SEXUAL ABUSE (1982). See also Koszuth, Supra note 7 at 279; Mason, Social Workers as Expert Witnesses in Child Sexual Abuse Cases, 37 SOCIAL WORKER 20 (1992).  [Back]

38 Summit, The Rehabilitation of the Child Sexual Abuse Accommodation Syndrome in Trial Courts in Kentucky: Commentary, 1(4) JOURNAL OF CHILD SEXUAL ABUSE 147, 148 (1992).  [Back]

39 Summit, Supra note 5 at 177.  [Back]

40 Reichard, Is the Grass Greener on the Other Side of the River? The Child Sexual Abuse Accommodation Syndrome in Indiana's Courts, 1(4) JOURNAL OF CHILD SEXUAL ABUSE 143 (1992); Stewart and Young, The Rehabilitation of the Child Sexual Abuse Accommodation in Trail Courts in Kentucky, 1(4) JOURNAL OF CHILD SEXUAL ABUSE 133 (1992); Michele Meyer McCarthy, Note, Admissibility of Expert Testimony on Child Sexual Abuse Accommodation Syndrome in Kentucky, 81 KENTUCKY LAW REVIEW 727 (1992-1993); Michelle Palmer-Percy, Note, State v Floody: The Admissibility of Expert Testimony Regarding "Child Sexual Abuse Syndrome" 38 SOUTH DAKOTA LAW REVIEW 189 (1993); Bulkley, The Prosecution's use of Social Science Expert Testimony in Child Sexual Abuse Cases: National Trends and Recommendations, 1(2) JOURNAL OF CHILD SEXUAL ABUSE 75 (1992); Gothard, The Admissibility of Evidence in Child Sexual Abuse Cases, 66 CHILD WELFARE 13 (1987); Hall, The Role of Psychologists as Experts in Cases Involving Allegations of Child Sexual Abuse, 23 FAMILY LAW QUARTERLY 451 (1989); Steward v State, Infra note 60 at 492-498; Gail Ezra Corz, Note, Evidence - Expert Testimony - The Admissibility of Child Sexual Abuse Accommodation Syndrome in Child Sexual Abuse Prosecutions. State v J.Q. 130 N.J. 554, 617 A.2d 1196 (1993), 26 RUTGERS LAW JOURNAL 251 (1994); Sagatun, Expert Witnesses in Child Abuse Cases, 9 BEHAVIORAL SCIENCES AND THE LAW 201 (SPRING 1991).  [Back]

41 Id. See also, Summit, Supra note 5; McCord, Supra note 5; Summit, Supra note 30; Allen and Miller, The Expert as Educator: Enhancing the Rationality of Verdicts in Child Abuse Prosecutions, 1(2) PSYCHOLOGY, PUBLIC POLICY AND LAW 323 (1995); Mason, Infra note 44; Holmes Infra note 57; Myers, et al., Supra note 32; Elizabeth Vaughan Baker, Note, Psychological expert testimony on a Child's Veracity in Child Sexual Abuse Prosecutions, 50 LOUISIANA LAW REVIEW 1039 (1990); Andrew Cohen, Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 THE GEORGETOWN LAW JOURNAL 429 (1985); Bulkley, Legal Proceedings, Reforms, and Emerging Issues in Child Sexual Abuse Cases, 6 BEHAVIORAL SCIENCES AND LAW 153 (1990); and Finkelhor, Early and Longterm Effects of Child Sexual Abuse: An Update, 21 PROFESSIONAL PSYCHOLOGY RESEARCH & PRACTICE 325 (1990).  [Back]

42 Id.  [Back]

43 Id.  [Back]

44 McCord, Supra note 5, at 41-58 notes there are two ways in which expert testimony is proffered by the prosecution to prove the truth of the claim of sexual abuse:

  1. a direct opinion by the expert that the complainant is telling the truth; or
       
  2. testimony from the expert that it is rare for a child to fabricate or fantasize a claim of sexual abuse.  [Back]

45 McCord, Supra note 5, at 58-60 notes that expert testimony can be used to bolster the credibility in two ways:

  1. to explain the delay in the reporting of the abuse; and
       
  2. to explain why the child would make a claim of sexual abuse, recant the claim and then try to retract the recantation.

This author disagrees with these two methods noted by McCord being classified as bolstering the credibility of the child. Using CSAAS to address the claim by the accused that the child is not telling the truth due to recantation and then recanting the recantation by the child is not a bolstering of the child's credibility; but allowing the state to show how and why such behavior can be explained in terms other than falsity on the part of the child.  [Back]

46 McCord, Supra note 5, at 64-66 notes that expert testimony can be used in two ways:

  1. to establish the child's ability to testify to the truth. The expert would testify that the child has the ability to testify accurately. This is done to allow the child to testify in the first place. The expert will testify that the child can differentiate between what is real and what is not; and
       
  2. to establish the capabilities of a child witness in general. Testimony centers on the abilities of children in general to testify in court. The value of this type of testimony is to counteract any prejudices adults might have regarding child witnesses.  [Back]

47 Summit, Supra note, 38 at 148.  [Back]

48 113 S. Ct. 2786 (1993).  [Back]

49 Frye v United States, 293 F. 1013 (D.C. Cir. 1923).  [Back]

50 Id. at 2795.  [Back]

51 Id.  [Back]

52 Id. at 2797.  [Back]

53 Id. at 2796-2797.  [Back]

54 Id. at 2776.  [Back]

55 Id. at 2797-2798.  [Back]

56 See Rosemary L. Flint, Note, Child Sexual Abuse Accommodation Syndrome: Admissibility Requirements 23 AMERICAN JOURNAL OF CRIMINAL LAW 171 (1995); Graham, Daubert v. Merrell Dow Pharmaceuticals Inc.: No Frye, Now What? 30 CRIMINAL LAW BULLETIN 153, 162 (1994). Graham argues that "development of a list of factors appropriately considered in determining the reliability-validity of the reasoning or methodology of . . . social science testimony is now the responsibility of the court."

Daubert does not require the court to make its own determination of the methodology science within the social sciences. Daubert requires that the methodology of the social science itself be considered to determine if the theory or testimony was scientifically reached. The social sciences should be judged as other sciences, judged and measured on its own methods of research and determinations. So long as the scientific method of the social science is used, as long as the expert testimony is based on "history, interviews, and medical and psychological testing, such [expert] testimony [will be] difficult to exclude unless it violates basic standards of evaluation." Zonana, Infra.

See, Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 (3) DUKE LAW JOURNAL 691 (1992); Faigman, The evidentiary status of social science under Daubert: Is it "scientific," "technical," or "other" knowledge? Special Issue: Witness memory and law, 1(4) PSYCHOLOGY, PUBLIC POLICY AND THE LAW 960 (1995); Goodman - Delahunty, Forensic psychological expertise in the wake of Daubert, 21(2) LAW AND HUMAN BEHAVIOR 121 (1997); Rotgers, and Barrett, Daubert v. Merrell Dow and expert testimony by clinical psychologists: Implications and recommendations for practice, 27(5) PROFESSIONAL PSYCHOLOGY AND RESEARCH PRACTICES 467 (1996); Zonana, Daubert v Merrell Dow Pharmaceuticals: A new standard for scientific evidence in the courts? 22 (3) BULLETIN OF THE AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW 309 (1994); Imwinkelried, Frye's General Acceptance Test vs. Daubert's Empirical Validation Standard - "Either . . . or" or "Both . . . And" ?, 33 (1) CRIMINAL LAW BULLETIN (JAN-FEB. 1997).  [Back]

57 Askowitz and Graham, The reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 CARDOZO L. REV. 2027 (1994); Chandra L. Holmes, Note, Child Sexual Abuse Accommodation Syndrome: Curing the Effects of a Misdiagnosis in the Law of Evidence, 25 TULSA L.J. 143 (1989); Kovera, Levy, Borgida, and Penrod, Expert Testimony in child sexual abuse cases: Effects of expert evidence type and cross examination, 18(6) LAW AND HUMAN BEHAVIOR 653 (1995); Supra note 56. For general discussion on the issue of psychological evidence see, Roberts, Will you stand up in court? On the admissibility of psychiatric and psychological evidence, 7(1) JOURNAL OF FORENSIC PSYCHIATRY 63 (1996); Faust, Use and then prove, or prove and then use? Some thoughts on the ethics of mental health professionals courtroom involvement. Special Issue: The ethics of expert witnessing, 3(3-4) ETHICS AND BEHAVIOR 359 (1993); Colman and Mackay, Legal issues surrounding the admissibility of expert psychological and psychiatric testimony, 20 ISSUES IN CRIMINOLOGICAL AND LEGAL PSYCHOLOGY 46 (1993).  [Back]

58 Supra note 36 and 39[Back]

59 Rosemary L. Flint, Supra note 56 at 189.  [Back]

60 See State v Foret, 628 So 2d 1116 (La 1993) and Steward v State, 652 N.E. 2d 490 (Ind. 1995).  [Back]

61 State v Foret, 628 So.2d at 1118.  [Back]

62 Id.  [Back]

63 Id.  [Back]

64 Id. at 1119.  [Back]

65 Id. at 1122 -1123.  [Back]

66 Id. at 1121.  [Back]

67 Id. at 1123.  [Back]

68 Id. at 1122 (Emphasis added).  [Back]

69 Id. at 1122-1123.  [Back]

70 Id. at 1123-1124.  [Back]

71 Id. at 1125.  [Back]

72 Id.  [Back]

73 Id.  [Back]

74 Id.  [Back]

75 Id. at 1126.  [Back]

76 Id. at 1127.  [Back]

77 Id.  [Back]

78 Id. (emphasis in original opinion).  [Back]

79 Id. at 1128-1129 (emphasis in the original opinion).  [Back]

80 Id. at 1129.  [Back]

81 Citing State v Myers, 359 N.W. 2d 604 (Minn. 1984); State v Kim, 645 P.2d 1330 (Haw. 1982); Wheat v State, 527 A.2d 269 (Del. Supr. 1987) and State v Spigarolo, 556 A.2d 112 (Conn. 1989). See also, Crowley, O'Callagham and Ball, The juridical impact of psychological expert testimony in a simulated child abuse trial, 18(1) LAW AND HUMAN BEHAVIOR 89 (1994).  [Back]

82 State v Foret, 628 so.2d at 1129-1130.  [Back]

83 Steward, 652 N.E. 2d at 491.  [Back]

84 Id. at 492.  [Back]

85 Id. at 491. Steward cited Commonwealth v. Dunkle, Infra and State v. Rimmasch, 775 P.2d. 388 (Utah 1989).  [Back]

86 Steward, 652 N.E. 2d at 491.  [Back]

87 Id. at 492-498.  [Back]

88 Id. at 499. See also FRE 403 and Supra note 55 and accompanying text..  [Back]

89 Id.  [Back]

90 Id.  [Back]

91 Id. See Daubert, 113 S.Ct. at 2796, 125 L.Ed.2d at 482.  [Back]

92 Steward, 652 N.E.2d. at 493.  [Back]

93 Id. at 499.  [Back]

94 Id.  [Back]

95 Id.  [Back]

96 Id. See State v Moran, 152 Ariz. 378, 728 P.2d 248 (Ariz. 1986) (emphasis in original).  [Back]

97 Askowitz, Restricting the Admissibility of Expert testimony in Child Sexual Abuse Prosecutions: Pennsylvania tales It to the Extreme, 47 (1)UNIVERSITY OF MIAMI LAW REVIEW 201 (1992). See also, Steward v State, 652 N.E.2d 490 (Ind. 1995) "In Dunkle, the Pennsylvania Supreme Court prohibited from admission in child sexual abuse cases essentially all expert testimony concerning behavior patterns. Dunkle's approach is noteworthy because much of the expert testimony excluded seems to have been offered for rehabilitative, not diagnostic, purposes." at 496. See also, Mason, The Child Sex Abuse Syndrome: The Other Major Issue in State of New Jersey v Margaret Kelly Michaels, 1(2) PSYCHOLOGY, PUBLIC POLICY AND LAW 399 (1995). Mason notes that the Dunkle "court declared that an expert should not have been permitted to explain why sexually abused children might delay reporting incidents to family members, might not give complete details of incidents, and might be unable to recall dates or times of incidents, as understanding of those motives was well within jurors' common knowledge." at 406. See also, Patricia A. Korsy, Note, Evidence -Rehabilitative Expert Testimony in Child Abuse Cases: The Supreme Court of Pennsylvania Shuts this Door on Effective Prosecutions -Commonwealth v Dunkle, 602 A 2d 830 (Pa 1992). 66 TEMPLE LAW REVIEW, 589 (1993).  [Back]

98 The Wheat decision has been adopted by other courts as the proper analysis of the use of CSAAS evidence in criminal cases. See State v Foret, Supra note 60[Back]

99 602 A.2d 830 (Pa. 1992). The court misunderstood CSAAS evidence from the beginning of its opinion when it asserted that "this syndrome is an attempt to construct a diagnostic or behavioral profile about sexually abused children. The existence of such a syndrome as . . . a generally accepted diagnostic tool . . . is not supportable. Several commentators note that the so-called sexual abuse syndrome is not specific enough to sexually abused children to be accurate." Dunkle, 602 A. 2d at 832 (emphasis added). The court clearly did not have a grasp on the various theories of child sexual abuse because it considered testimony on Sexually Abused Child Syndrome (a claimed diagnostic tool), Child Abuse Syndrome (a theory dealing with the child abuse, both sexual and non sexual) and Child Sexual Abuse Accommodation Syndrome as synonymous terms. The case was submitted on May 6, 1991 to Chief Justice Nix and Justices Larsen, Flaherty, McDermott, Zappala, Papadakos and Cappy. The case was decided on January 22, 1992.  [Back]

100 Commonwealth v Dunkle, 561 A.2d 5 (Pa. Supr. 1990).  [Back]

101 Justice Cappy listed the symptoms as: fear of the offender, anger towards the alleged offender, confusion on the part of the child, feelings of guilt, confusion over proper family roles on the part of the child, incorrect positive statements of family life on the part of the child, very low self-esteem, withdrawal after disclosure of the claimed assault, self isolation, reduction in performance in school, dissociation from common practices and friends, inability to concentrate, runaway behavior, rebellion, acting out, becoming promiscuous, drug use, alcohol use, regression, suicide attempts or thoughts of suicide, depression, eating disorders, nightmares and bed wetting. Dunkle at 833-834.  [Back]

102 Dunkle, 602 A.2d at 833. But See Crowly, et al., Supra note 81[Back]

103 Id. at 832. The Court applied the Frye test. See Supra note 49[Back]

104 Id. See also State v Rimmasch, 775 P.2d 388 (Utah 1989).  [Back]

105 Id.  [Back]

106 Id. at 832.  [Back]

107 Summit, Supra note 36[Back]

108 Dunkle, 602 A.2d. at 834.  [Back]

109 The court cited Commonwealth v Seese, 517 A.2d 920 (1986). See also Commonwealth v Davis, 541 A.2d 315 (1988) and Commonwealth v. Gallagher, 547 A.2d 355 (1988).  [Back]

110 Dunkle, 602 A.2d at 839.  [Back]

111 Id. at 841.  [Back]

112 Dunkle, 602 A.2d at 843.  [Back]

113 Id. (emphasis included in original opinion).  [Back]

114 Wheat v State, Del.Supr., 527 A.2d 269 (1987).Wheat was argued on January 27, 1987 and decided on June 11, 1987. See also Powell v. State, Del. Supr., 527 A2d 276 (1987).  [Back]

115 Id. at 270.  [Back]

116 Id. at 271.  [Back]

117 Id.  [Back]

118 Id.  [Back]

119 "Factors described included: (a) pressure on the complainant by family members, especially through continued contact with the alleged abuser; (b) fear of the legal process (c) the child's conflicting feelings towards the alleged abuser and (d) a desire to prevent the withdrawal of affection that may accompany allegations of abuse." Id. at 271 footnote 1.  [Back]

120 Id. at 272.  [Back]

121 Id.  [Back]

122 Id. Note similarity to FRE 702.  [Back]

123 Id. Here is where the two courts differed. The Dunkle court concluded that CSAAS did not provide the jury with information it did not already possess, thus it had no relevance. The Wheat court recognized that a jury would not understand the dynamics of intrafamily sexual assault and that the behavior of such a child can seem superficially as evidence of deceit and CSAAS provides an alternative explanation to such behavior.  [Back]

124 Id. at 273.  [Back]

125 Id. at 274.  [Back]

126 Id. at 274 fn. 4. See also Wittrock v State, Del. Supr., No. 373, 1992, Horsey, J. (July 27, 1993) (order). See also, State v Redd, 642 A.2d 829 (Del. Supr. 1993), the New Castle County trial court rejected the admission of CSAAS evidence based on a "quasi parent-child" relationship theory. The Court held that the Wheat and Wittrock decisions were clear in holding that CSAAS could only be used in cases of intrafamily abuse.

Summit disagrees that CSAAS should be limited to intrafamily sexual abuse. He describes this type of limitation as "a frank distortion . . . of the scope of the CSAAS and of clinical reality. Silence is intrinsic of the victimization process, not the family systems dynamics." Summit, Supra note 30 at 159. This may be true, but Summit's original article leaves the impression that the family dynamics and the reactions of other family members to the child after her disclosure of sexual abuse is at the heart of the CSAAS.

Summit wrote that "most parents are not pre[pared] to believe their child in the face of convincing denials from a responsible adult." Summit, Supra note 5 at 179 (emphasis added). In the same article he wrote that the crime of sexual abuse usually does not include third parties and "acceptance by adult caretakers . . . is important." Id.(emphasis added). Summit further explained that "it should be clear that no child has equal power to say no to a parental figure or to anticipate the consequences of sexual involvement with an adult caretaker." Id. at 182 (emphasis added).

Summit notes that the time and the circumstances can influence the disclosure of the sexual abuse. If "family conflict triggers disclosure, it is usually only after some years of continuing sexual abuse and an eventual breakdown of accommodation mechanisms. The victim of incestuous abuse tends to remain silent until she enters adolescence when she becomes capable of demanding a more separate life for herself and challenging the authority of her parents. Adolescence also makes the father more jealous and controlling. . . . After an especially punishing family fight . . . the girl is finally driven by anger to let go of the secret" of her father's sexual abuse. Id. at 186 (emphasis added). Children "often describe their first experience [of sexual abuse] as waking up to find their father . . . exploring their bodies . . . . [O]r may find a penis filling their mouths or probing between their legs." Id. at 183 (emphasis added). Lastly that the CSAAS is designed to assist in the treatment and understanding the results of child abuse "within the family and within the systems of child protection and criminal justice . . . ." Id. at 179-180 (Emphasis added).

If CSAAS was intended to focus on the victimization alone, the original 1983 article does not leave such an impression. The article focuses on the abuse within the family dynamics in regard to (1) the abuser being part of the family and (2) the family reactions to the child and her disclosure.  [Back]

127 See Powell v State, Supra note 119. In Powell the court specifically ruled that the use of statistics in regard to truth telling of children who claim sexual abuse is plain error, requiring reversal.  [Back]

128 Garrison, A. United States Supreme Court: Analysis and Application of the Confrontation Clause in Regard to Cases of Child Sexual Abuse, 9(3-4) ISSUES IN SEXUAL ABUSE ACCUSATIONS 126 (1998) at 143.  [Back]

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