Appendix One

American Psychological Association arguments on the emotional trauma caused by the confrontation of a child victim and the defendant in court.

American Psychological Association Brief: Kentucky v. Stincer (1987).

American Psychological Association Brief: Maryland v. Craig (1990).

The scientific data regarding the effects on child victims of sexual abuse of confronting their alleged abusers in the courtroom are sparse and inconclusive.

The resulting body of research supports the proposition that children as a class may be especially likely to be emotionally distressed by courtroom confrontation with their alleged abusers.

Because so little is known at this point about the effects on child victims of sex abuse of testifying in front of their alleged offenders, the court should refrain from making any broad generalizations about the trauma experienced by child victims and their circumstances. Rather a case-by-case determination of the effects on individual children should be made. There is evidence that a substantial number of children are capable of testifying fully and accurately under conventional criminal procedures without serious and lasting harm, thus case-by-case assessments should be made in regard to special procedures for child victims.
The view that children are especially vulnerable in legal proceedings is based much more on emotion, intuition and commonly held assumptions about what children are like than on analysis of reliable scientific data in this area. Child victims may be more likely than adult  victims to suffer substantial distress as a result of testifying in the physical presence of the defendant.

The assumptions about confrontation with the alleged defendant in court fail to take into account other factors that can lead to emotional distress or trauma:

1. Reactions of parents
2. Level of support by parents and adults

Widely held assumptions about the effects on child victims who participate as witnesses in the legal process are not supported by the scientific data.  Amicus is aware of no social science studies that have focused exclusively on the psychological effects on child victims of sexual assault of testifying in the presence of their alleged offenders.

There is reason to believe face-to-face confrontation is a significant factor in child victim-witnesses' distress.  Research shows that the most frequent fear expressed by children awaiting testimony is fear of facing the defendant. Other reasons for the stress include:

1. Time spent in legal proceedings
2.

Lack of cognitive sophistication may make the legal system even more difficult:

A.

Children in the late elementary grades can appreciate the nature and purpose of the adversarial system.

B.

Preschool and primary grade children often comprehend no more that the most rudimentary legal concepts.

It is well established that ambiguity fosters anxiety and that children may be more troubled by what they think is happening in courtrooms from which they are excluded than by what they would experience if they were direct participants in the process. Given the fact that ambiguity generally fosters anxiety, young children's lack of understanding of the legal process is likely to add to the stress that they experience when they testify.

Because young children generally possess less developed abilities to organize and rationalize their experiences, and in addition have problems in communicating their needs to adult authority figures, some researchers report that child victims may experience the following reactions more intensely than their adolescent and adult counterparts.

1. Preoccupation with the assault and ensuing legal process;
2. Additional fear and confusion, induced by numerous detailed investigations and court appearances;
3. Anger, anxiety or confusion resulting from skepticism in others about their story and suspicion about their veracity; and
4.

Betrayal by people they previously considered to be supportive in their lives.

Little scientific data has been gathered on this point.

When the emotional well-being of children who testified in criminal court is compared to that of a matched group of children who were also involved as alleged victims in child sexual assault prosecutions but who did not have to testify, children who testified evidenced significantly greater distress 7 months post-testimony as well as after the final disposition of their cases.

Researchers and clinicians still do not know why court appearances are harmful to some children and beneficial to others, or which circumstances lead to trauma and which to catharsis. There is some support for the view that the following factors reduce trauma:

1. Strong family support;
2. Adequate preparation of the child and education on the judicial process; and
3. Careful follow-up and management during the child's participation in the legal process are the most effective means of reducing the stress inherent in testifying, and thereby increasing the likelihood of a positive experience.

The stress of appearing in court and testifying in the presence of a defendant adds to the distress that many child victim-witnesses are already experiencing due to the trauma of the sexual abuse. Testifying in criminal court is, on average, associated with immediate as well as lasting distress. The following factors create the additional stress and trauma in children:

1. Multiple testifying;
2. Lack of maternal support when the abuse was disclosed;
3. Cases that lack corroborative evidence;
4. Cases of severe sexual abuse;
5.

Cases where the child is particularly frightened of the defendant;

6. Intra family sexual abuse.

Some research shows that the ability of the child to face the alleged abuser can be beneficial in that the child will have:

1.

Knowledge that social institutions take children seriously;

2. Feeling of empowerment;
3. "Their day in court";
4. The offender punished;
5. Their victimization acknowledged;
6. Legal retribution;
7. Sense of vindication; and
8. Knowledge that the abuse was not their fault.
Not all children are adversely affected, however, and some professionals believe that, if handled properly, some children may benefit from the experience of testifying against their abusers.
A case-by-case assessment should be made in order to determine if a child will have increased trauma as a result of testifying in court in the presence of the accused. A case-by-case assessment should be made in order to determine if a child will have increased trauma as a result of testifying in court in the presence of the accused.

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