Investigative Procedures in Allegations of Child Sexual AbusePart II: Victim and Subject InterviewsJohn C. Wideman*ABSTRACT: This is the second of a series of articles on
investigative procedures in child sexual abuse. The object of this
series is to suggest how an investigation should be done correctly.
This
article discusses how to interview alleged victims and perpetrators. At this point in the investigation, the investigator will have secured available physical evidence, if any, and interviewed the first reporter. Other, immediately available witnesses also may have been interviewed. The information gathered will tell the investigator several important things:
This information will now be used to adjust the investigative plan and orient investigative resources. For example, some states have statutory provisions concerning incest cases which seek to maintain the nuclear family and opt for counseling as opposed to prosecution of the offending family member. If a peer age playmate is involved, the matter may have to be turned over to a special juvenile unit or officer. If the perpetrator is an elderly grandfather, senile, mentally impaired, or a family member, the prosecutor and the family may have no interest in prosecuting the case. The investigator should always maintain close
contact with the prosecutor to insure that the prosecutor intends to
prosecute the case should it develop into a viable criminal matter.
There is simply no purpose in a criminal investigator continuing to
investigate a case that the prosecutor has determined will not be
prosecuted. This is not to say that leads which could lead to an
indictment should not be pursued. However, investigative resources
are not endless and often, the matter is better handled through a
social service agency (e.g. welfare, human services, child protective
services) where prosecution is not the ultimate objective. In order
for this to be done in a professional, orderly and efficient manner,
the investigator must never lose sight of his job and become so focused
on a case that he loses his perception of reality. A second matter that will come into play in cases involving child sexual abuse is publicity.(15) This may be publicity concerning the incident if it is unusual, violent, or particularly gruesome, if the victim is from a prominent or politically powerful family, or if the offender is prominent, politically powerful or unusual in some respect. It takes a particularly disciplined investigator to ignore news media inquiries until the time is proper for such information release. For most investigators, this problem will be solved by the law enforcement department head or the prosecutor, one of whom will make statements to the news media. Pray they don't screw up the investigation. If the investigator is faced with handling news media inquiries as might occur on an ad hoc basis or in a small department, there are a number of considerations:
Interviewing the Victims I will not go into extreme length on interviews
involving child sexual abuse victims. There is an abundance of information available concerning child
victim questioning methodology in Wakefield and Underwager,
Accusations of Child Sexual Abuse(17) and their latest book,
The Real
World of Child Interrogations.(18)
In addition, there are other authors(19), who offer limited information on how to interview child
victims. I would like to address other problems that are more
investigative in nature. Perceptions About the Investigator All of us are concerned about our professional reputation and standing. Investigators are no different. Investigators would like to be seen as consummate, unbiased professionals and guardians of the public morals and welfare, but the reputation is not often realized. One of the reasons for this is a public perception of investigators as overzealous, biased, and statistics happy. In child sexual abuse cases, the reputation becomes magnified, particularly if the victim or suspect are well known, or if there is some lurid aspect to the case. Often times, to counter the feared perception, investigators will adopt macho positions regarding the alleged crime and offer public and private opinions as to what extremes of punishment should be visited upon the "perp" when he is caught or convicted. Of all crimes, nowhere is the true professional demeanor of the investigator more important than in child sexual abuse crimes. The investigator must resist the impulse to join with society in making outlandish remarks about offenders, punishment, and future expectations of the offender's life in the "joint." We all have heard the often apocryphal stories of what happens to child molesters ("short eyes") in prison. Yet, no one has done a scientific study, to this author's knowledge, about what happens to child molesters in prison environments. The several offenders with which this author has been involved did their time and are presently wandering the streets. None was killed, severely brutalized, or mutilated. The situation facing the investigator in a child sexual abuse case is best summed up by Lanning and Hazelwood(20) in their seminal work, The Maligned Investigator of Criminal Sexuality:
So, the investigator does not want to be known as
highly interested in child sexual abuse matters for fear that someone
will suspect the investigator of being "strange." A
collateral issue is to protest against such outrageous crimes first so
that people will not think that the investigator "likes" his
work. The best way to avoid all these problems is to conduct the
investigation in an unbiased, aggressive professional manner seeking
to obtain facts and from those facts, determine if an offense actually
occurred and who may have committed the offense. General Investigative Concerns for the Family In every case, there will be general concerns that have to be addressed eventually. Usually, the non-offending parent or guardian will ask these of the investigator. Some of the questions have readily available answers, some do not. Examples of such questions are:
If you know the answer and can insure that it is right, go ahead and answer the question. Do not pretend to be psychic, give legal advice or be doom and gloom. Be practical and forthright. Do not lie to the parents just to get them to agree to a prosecution of the matter. Remember that they probably will have constant
control of the victim and can grossly influence the outcome of any
trial. If they perceive that they have been tricked or lied to, they
may sabotage your whole effort. Incest Victims For the purposes of this article, we will consider only natural parents and natural siblings, including half-brothers or half-sisters, as definitionally able to commit incest. For that reason, step-parents, step-siblings, and all other blood-related but non-nuclear family members are considered in the all other offender category. Each investigator will have to be guided by the specific state statutes in his jurisdiction for charging purposes. However, here we are considering operational matters more than technical, legal matters. For the investigator, the interview of the child sexual abuse victim poses a number of special problems with which the investigator usually does not deal. The offender may be a parent, step-parent, sibling, step-sibling or a family relative. This in itself is not unusual because numerous acts of violence, particularly homicides, are perpetrated by nuclear and non-nuclear family members. However, because of the puritan ethic of our society concerning matters of a sexual nature and the particular taboo concerning incest, investigators may become concerned when dealing in these areas. This, coupled with the fact that often there is little or no physical evidence, make the investigation very difficult and put the investigator in the position of being the visible representative of society to the family, offender and non-offender alike. if the preliminary information indicates that a nuclear family member (natural parent or natural sibling) may be the offender, the investigator is faced with a problem. The various states and the federal government agencies all handle the interview of a child victim, particularly incest victims, differently. The investigator has to be guided by his own policies and procedures as well as the applicable statutes under which he operates. With those in consideration, the investigator needs to select the path to the victim that offers the best chance to obtain as untainted an interview as possible. Obviously, an interview at the residence with the possible offender present does not offer such an opportunity. Another factor is that if a parent or a sibling is the suggested offender, the other parent, or parents, may not be cooperative for many reasons. The investigator should be aware at all times that a whole host of intrafamily dynamics exist which are very complex and often are neither rational nor reasonable. DO NOT assume that any family member, including the victim, will leap to your side of the matter or welcome your intervention with open arms. Some of the reasons for this are:
The investigator has the potential to destroy their family. He may be fought every step of the way. The tactical problem is how to gain access to the child victim before other influence is brought to bear on the victim. If the investigator waits too long, the offender may be able to influence the victim against the investigation. Also, if a non-offending parent is aware of the problem, but has other concerns about safety, welfare and community status, the non-offending parent also may seek to influence the child against the investigation. One possibility might be to interview the victim at school. While this is not the optimum condition, it may be the only way to get to the victim before intervention by others. If the interview is conducted at school, it should be conducted in a location where the interview will not be interrupted by persons coming and going. The principal's office might be a choice, but you should consider that many children look to the principal's office as a place they are sent for punishment, not accolades. If there is a school counselor, that office might be used. The counselor is usually looked upon as a source of help or assistance by many children. The infirmary, if there is one, should probably be avoided since it connotes a place where you go if you are injured and it is usually fairly busy. Any other unused office is also a possible place for the interview. If the victim is interviewed at school, the fact of that interview will be common knowledge throughout the student population within a very short period of time. All schools have students working in the offices and at other locations. When the victim is called from class and told to report to the office, curiosity will be aroused and the victim, upon return, will be questioned intently by other students, and possibly teachers. There is also a tendency on the part of teachers and administrators to try to "help" the investigator. This means that they will communicate among themselves the purpose of the interview and try to cover themselves if there is any possibility that adverse actions may fall back on them. How much they know of the circumstances will depend upon the investigator and other factors such as if the first reporter was a teacher. If school is not a possibility, then a little finesse is required on the part of the investigator. The investigator should attempt to get the non-involved parent to bring the child to the police station for an interview. This may be accomplished by the investigator approaching the non-offending parent in person when the victim is home, but the offending parent is not at home. At least, at the police station, there is some control over the interview and you do not have to be concerned by the sudden appearance of the offending parent in the room. If the offender is a sibling an interview at the
home of the victim may be possible. Once again, the investigator's
instinct will have to lead on this situation. The ultimate object is
to obtain the information in as sterile a form as possible to reduce
the influence of other factors. Victims Other than Incest Victims If the offender is not related directly to the victim as a parent or sibling then more firmly grounded procedures may be available to the investigator. As an axiom, the more distant the relationship between the offender and the victim, the greater the cooperation of the victim's parents probably will be with the investigator keeping in mind general family concerns. In those instances where the investigator has access to the child with the cooperation of the parents, the interview situation should be maximized toward obtaining as pure a statement as possible. Part of this maximization includes:
If the investigator has not had significant experience interviewing children of the age of the victim, then
consultation with a psychologist specializing in children is
recommended. Usually a nearby state university or state hospital has
such persons on its staff. At a minimum, some professional reading is
in order. All Victims: During the interview, the investigator must cover the following areas with the victim:
Other considerations during the interview include:
During the interview, even though the interview may be recorded on videotape or on audiotape, notes should be taken by the investigator or, preferably, by another investigator. The reason for this is that electronic instruments fail. If you do not take notes during the interview and the recording apparatus fails, you will have no record of the interview. This presents several problems, not the least of which is being cross-examined on the witness stand by defense counsel about the "unrecorded" interview. After the interview is concluded, the investigator should take a moment to randomly review his electronic tape to determine if, in fact, all systems operated properly and the interview was recorded. If all is in order, the victim should be allowed to leave. If for some reason there was a system failure, the interview should be conducted again immediately to avoid losing the information available at that point. If a second interview is required, the questions and notes from the first interview should be used to insure that all areas are covered and that the second interview is in conformity with the first. The equipment failure should be rectified and the second interview recorded as well. DO NOT record over or use the original tape media used in the first interview. Defense counsel will want to review it, test it and possibly use it in court. If you do not have it, you may be accused of destroying exculpatory evidence. Once the interview is successfully completed, the
tapes and notes should be secured in the usual manner and in
accordance with your physical evidence policies. Always break off the
erase tabs to avoid inadvertently erasing the tape while making a copy.
Make at least one copy of any video- or audiotape for use by the
investigator or the prosecutor during the investigation. Ultimately,
the defense attorney will want to review the original tapes. For ease
in the investigation and for the prosecutor, a transcript should be
made of any tape produced, even videotapes. Subject Interviews General Comments Where flight by the suspect in the case is not highly likely, refrain from obtaining an arrest warrant until all investigative activity has been completed. Arrests start various "speedy trial" statutes running and create a time delimitation for the investigator. Even if the suspect flees, apprehension, except in the case of experienced career criminals, is usually just a matter of time. The investigator may want to not even get a warrant, but take the matter directly to the Grand Jury. An arrest results in a preliminary hearing, at which a good defense attorney will be able to do some early discovery. Also, a politically sensitive, or inept, magistrate may not bind the matter over to the Grand Jury forcing the prosecutor and the investigator to go direct to the Grand Jury anyway. So, if an arrest is not absolutely necessary, simply obtain an indictment by presentment before a Grand Jury. In some states, a capias is issued on indictment and at that time, the suspect may be arrested. Some interesting statistics offered by the FBI are:(22)
Before the investigator can structure his approach
to the suspect, he needs to evaluate the suspect from the standpoint
of trying to determine the best psychological technique to use. Offenders are most commonly placed into two distinct categories,
fixated and regressed.(23) Fixated Offenders These offenders have been sexually attracted to younger people since adolescence and will be so attracted throughout their entire lives. During adolescence, they were not highly socialized and did not lead a "normal" social existence. In adult life, they usually do not initiate mature, interpersonal sexual relationships. They are capable of normal sexual acts, but these are usually situational. Sexual attraction to children is not bothersome to these offenders because they do not see anything wrong with such activity. These persons are basically inadequate personalities who fear rejection by a female, have inferiority complexes and engage in fantasy. They have no regret and are usually only sorry that they got caught. In interviewing this type of offender, empathy on
the part of the investigator will be looked upon as a show of weakness
by the offender. The offender should be approached from the standpoint
of trying to let the offender talk as much as possible. He considers
himself smart and believes he has done nothing wrong. Ultimately, if
the investigator has sufficient patience, the offender may outsmart
himself. Do not expect a confession from this offender. If a
confession is offered, it will usually be couched in terms of
projecting guilt on others. Regressed Offenders These persons originally preferred peer heterosexual relationships and developed in a normal sociosexual fashion during adolescence. During their life, they reach a point where something highly stressful occurs. It may be a single traumatic event, or a series of events (e.g. financial trouble, unemployment, divorce, death of close relative or friend, alcohol or drug addiction, failure). They turn to children for non-demanding affection and love. It usually starts as a social contact and progresses from there to a sexual relationship. The progression is usually fondling, kissing, hugging, oral, then genital contact. These offenders are genuinely remorseful, ashamed, humiliated and have great guilt feelings. This offender is a good candidate for suicide. In interviewing this offender, remember that you
are dealing with an inadequate personality. Do not attack him.
Use
empathy, explain that there is help available for him and that the
condition is not irreversible. A confession is likely. Miranda Considerations Investigators should be guided by their own departmental policies when it comes to subject interviews and/or arrest procedures. The recommendations are offered here for the purpose of encouraging change in unnecessarily restrictive departmental policies. In the original Miranda decision (Miranda v. Arizona, 384 US 346 [1966]), amplified in Beckwith v. US, 425 US 341, the Supreme Court told police officers that only when a person is in police custody (i.e. under arrest) is that person to be advised of four "rights":
There is no requirement for Miranda warnings when the person is only the focus of an investigation and not in custody. In order to legally interview a person in custody, the investigator need only insure that the person fully understands the four rights that have been explained to him and that he wishes voluntarily, of his own free will, to answer questions posed by the investigator. A written waiver is not required. An oral waiver is sufficient, as long as the interviewee acknowledges that he fully understands each of the rights as they were explained to him. If the offender is not in custody, his freedom of movement is not precluded in any meaningful sense, and there is no "coercive" environment, then MIRANDA WARNINGS ARE NOT REQUIRED BY LAW. A suggested manner of beginning the interview is to advise the suspect that he is not under arrest and that the investigator merely wants to interview him regarding a matter under investigation. If you are in a police building or any other official building, you might also want to advise the subject that he is free to leave at any time. This will help to preclude the accusation of "coercive atmosphere" (See Oregon v. Mathiason, 429 US 492 [1977]). The interview should be tape recorded from beginning to end. This will provide a complete record of the interview for later use and will provide ample proof that the subject was advised that he was not in custody, was free to go, and that any of his answers were voluntary. If the interview is not recorded, it is a good practice to have one other investigator present as a witness. Check on your individual state laws regarding the recording of interviews without the knowledge of the suspect. Most states allow recording of conversations as long as the investigator is a party to the conversation. Some prosecutors may have some concern about recording of an interview without the knowledge of the suspect. These concerns are usually cosmetic in nature and have nothing to do with the legality of the recording. If the subject is in custody, then the tape recording will show that all the proper warnings were given and that the subject fully understood and knowledgeably waived those rights. One final consideration. If at any time the
suspect, in custody or not, tells you that he wants an attorney, or
that he no longer wishes to answer questions, stop asking questions at
that moment and terminate the interview. If the investigator proceeds carefully,
and in accordance with the law, there is less likelihood of a court
throwing out statements and other evidence. The Interview After evaluating the offender typology and making an initial determination as to the type of offender being faced, the investigator should proceed in a quiet, professional manner. Initially, obtain the basic biographic data and attempt to establish some rapport with the suspect. By starting off softly, the investigator will not scare a regressed offender and will allow the fixated offender an opportunity to demonstrate how "smart" he is. As the interview progresses, the investigator should adopt the necessary interview strategy that best fits his personality and the background, education and typology of the suspect being interviewed. With the fixated offender, the investigator's primary goal will be to obtain information that is inconsistent with known facts. This will demonstrate, hopefully, that the suspect is lying. Since a confession is not likely, obtaining such inconsistent statements is probably the most valuable thing that can occur. With the regressed offender, the investigator's primary object will be to gain his confidence and obtain a confession. The suspect wants to change because he knows his conduct is wrong. The investigator is offering him the opportunity to unload his guilt on a sympathetic ear. He hopes that by confessing, he will get help and will no longer have to bear the burden of what he is doing. Often, the confession will come in stages, with the initial stages being those where the suspect excuses his conduct, or attempts to minimize or rationalize his conduct. Once started, the suspect will usually wind up confessing completely. Regardless of the typology of the offender, it is preferable to obtain a written statement from the interviewee. This is necessary to lock the fixated offender into his story and help the regressed offender unload some of his guilt. The statement should be brought up only after the interview is completely through. Some people will talk to you as long as they are not thinking that what they are saying is going to be reduced to some concrete form, like a statement. The minute the realization comes on them that the final product will be something that others can read, or see, they will terminate the interview. Where possible, let the suspect write out the
statement in his own handwriting. The handwritten statement can be
typewritten at a later date for ease of reading. An alternative is for
the investigator to write the statement out for the suspect and have
the suspect adopt the statement by signing it. If this latter
method is used, read the statement out loud as it is being written.
This will offer the suspect the opportunity to make any corrections at
that point rather than trying to shoehorn a correction into an already
written statement. Have the suspect read the statement, initial any
corrections that have been made and sign the statement in the presence
of a witness other than the interviewing investigator. Post-interview Some consideration should be given to investigative activities immediately after the interview with the suspect. This is particularly true if there has been a confession. A regressed offender may be suicidal after having confessed. Too, this would be a good time to evaluate the escape risk for a fixated offender. Pre-interview liaison with the prosecutor should cover these contingencies. The prosecutor may want to have a warrant issued and the suspect arrested, if that has not been done already. Or, the prosecutor may want to await further investigation if a confession has not been obtained. In any event, the suspect should be left so that
the investigator could possibly reapproach him in the future. Politeness and common courtesy go a long way toward assuring that. Case Preparation and Conclusion The investigator should have interviewed the victim, the first reporter, all known witnesses and the suspect before considering a case ready for presentation to the prosecutor. Although the investigator will probably have had regular contact with the prosecutor throughout the investigation, the investigator usually is the one who determines when the investigation is complete. The investigator should make sure all the following points have been covered.
The investigation is now complete and the matter is
ready for presentation to the prosecutor and, ultimately, to the Grand
Jury. Footnotes Part II
[Part I] [Part II] [Part III] Part IV] [Part V] |
[Back to Volume 2, Number 1] [Other Articles by this Author]