Sexual Abuse Allegations in Custody DisputesHollida Wakefield*Child sexual abuse allegations arising during divorce and custody
conflicts are complicated. It is difficult to get objective,
reliable information, approach the evaluation with an open mind, and
develop multiple hypotheses or explanations for the allegations.
But try to get all of the information you can. Pertinent documents
include protective services records, police reports, transcripts and/or
tapes of prior interviews, medical records, therapy, and school records.
Look at the dynamics of the family system, the timeline of the case, the
circumstances surrounding the disclosure, the quality and nature of all
formal and informal interviews, possible motivational factors, and any
preexisting biases on the part of the prior interviewers.
Familiarize yourself with the relevant literature, which I will
summarize in this article. Frequency and Definitional Problems Thoennes and her colleagues (Thoennes & Pearson 1988a, 1988b; Thoennes & Tjaden, 1990) estimated that accusations of sexual abuse were found in 2% of contested custody cases, and a newer survey also reported a frequency of 2% (McIntosh & Prinz, 1993). In contrast to this, La Fortune and Carpenter (1998) surveyed 165 professionals who reported that an average of 30% of their custody cases contained sexual abuse allegations. No one really knows how many sexual abuse accusations in custody disputes are false. Part of the confusion comes from differing definitions of a false allegation. For example, an unsubstantiated allegation is not the same as a false one. "Unsubstantiated" is the term used by child protective service agencies when they are unable to confirm a finding of abuse. At the same time, the designation "substantiated" does not necessarily mean the allegation is true. A study conducted for the U. S. National Center of Child Abuse and Neglect found that in about half of the cases of families under the supervision of child protective services, the parents had never actually maltreated their children (Besharov, 1985). Sometimes a false allegation refers to a case which cannot be substantiated; at other times this label is limited to a case in which the accuser is purposefully fabricating and deceiving. I differentiate between false and fabricated (or fictitious) allegations and define a false allegation as any situation in which abuse is judged not to have occurred. A fabricated allegation is limited to a purposeful and deliberate false allegation. If the definition of a false allegation excludes cases that are unsubstantiated but are not deliberately fabricated, there will be a much smaller proportion of them. This is what was done in the oft-cited Jones and McGraw (1987) study reporting that only 8% of the cases were false. Thoennes and her colleagues reported that in 33% of their cases no
abuse was believed to have occurred. Abuse was believed likely in
50% of the cases, and in 17% no determination could be reached (Thoennes &
Pearson 1988a, 1988b; Thoennes & Tjaden, 1990). However, their
criterion as to whether the abuse was factual was the opinion of custody
evaluators and child protection workers rather than that of the justice
system. La Fortune and Carpenter (1998) reported that false
allegations constituted almost half of the cases where allegations were
made. In only 20% of the cases did the expert find clear evidence to
support the allegations. Actual Abuse Disclosed at Divorce There are several reasons for abuse not to be disclosed prior to a divorce in addition to a false allegation (Berliner 1988; Burkhart, 2000; Corwin, et al., 1987; Ehrenberg & Elterman, 1995; Faller, 1990b; MacFarlane, 1986; Sink, 1988b):
Several professionals (e.g., Corwin et al., 1987; Faller, 1990a;
Goodwin, Sahd & Rada, 1989; MacFarlane, 1986) believe that some parents
become more likely to sexually abuse their child after the divorce. This
may be to retaliate against the spouse or because the stress of the
divorce results in an angry or emotionally devastated parent seeking
affection and comfort from the child. There is no evidence, however, as to
how often this actually happens. False Allegations A false accusation is seldom a deliberate fabrication made to obtain custody. However, the media attention to sexual abuse and the publicity about purported behavioral signs of sexual abuse may sensitize parents to its possibility. Then, when embroiled in a custody battle, a parent may play close attention to the child following visits with the other parent. In a high-conflict divorce, not only is the child likely to undergo significant stress, the parents are apt to blame the child's anxiety and distress on the other parent (Wallerstein & Kelly, 1975 & 1980). Both parents are ready to believe the worst about their former spouses. Then, if they observe innocent or ambiguous behaviors, such as nightmares and bedwetting following a visit or find the child masturbating or engaged in sex play with another child, they may conclude that the other parent has done something to cause this behavior (Myers, 1993; Schaefer & Guyer, 1988; Wakefield & Underwager, 1988, 1990, 1991). The parent, now fearful that the former spouse has sexually assaulted the child, questions the child. The questions are apt to be leading and suggestive. In this way, statements about abuse inadvertently can be shaped and developed. Although deliberate false allegations to obtain an advantage in custody
are uncommon, they can happen (Green & Schetky, 1988; Wakefield &
Underwager, 1989, 1991). Thoennes and Pearson (1988b) report that in
15% of the cases they studied, the case worker doubted that the report was
offered in good faith. Myers (1993) observes that it is important in
custody disputes to differentiate between good faith but mistaken
allegations and deliberate falsehoods. A court may doubt the
custodial fitness of a parent who deliberately fabricates an allegation,
but see it as appropriate to award custody to a parent who makes a good
faith but mistaken allegation. Criteria for Differentiating Between Real and False Allegations Although it is the court's responsibility, not the professional's, to make the ultimate determination about whether abuse occurred, the court seeks guidance from mental health professionals regarding such allegations (Bow et al., 2002; Brooks & Milchman, 1991). The judge cannot make a decision concerning custody until there is a finding about the alleged abuse. Although there is no easy way to differentiate between true and false allegations, it is important to examine the circumstances of the disclosure of abuse and to learn as much as possible about the progression of the case (Ceci & Bruck, 1993). Areas that are believed to be important include:
CRITICAL ANALYSIS The Number and Quality of the Interviews, Both Formal and Informal There is strong research evidence documenting the susceptibility of children to leading and suggestive interviews. The suggestibility of child witnesses is one of the areas that Kassin et al. (2001) found to be considered by forensic psychologists as reliable, valid and adequate for use in court testimony. Kuehnle, Greenberg, and Gottlieb (2004) also note that the evidence concerning the way children should be interviewed in forensic situations is now sufficiently evolved so that the recommended techniques can be used in interviewing children in custody evaluations. It is now generally recognized that leading, suggestive, or coercive questioning can result in the child's developing a subjectively real memory for an event that never happened. A current article by Bruck and Ceci (2004) briefly summarizes the research in this area. Informal questioning by parents and other trusted adults can affect the responses of children in later, formal interviews, even when the forensic interviews are conducted in an optimally non-suggestive manner (Poole & Lindsay, 2001). Even the use of nonsuggestive, open-ended questioning does not guarantee accuracy when child witnesses have previously been exposed to misinformation. Several professionals and professional groups have developed guidelines as to how investigations and interviews must be done in order to obtain accurate and reliable information. These guidelines show a strong consensus as to how interviews and investigations should be conducted (APSAC, 1996; Bourg et al. 1999; Ceci & Bruck, 1995; Davies et aI, 1996; Kuehnle, 1996; NIJ, 1992; Myklebust & Alison, 2000; Orbach et al. 2000; Poole & Lamb, 1998; Powell & Thomson, 1994; Raskin & Esplin, 1991; Saywitz & Camparo, 1998; Sternberg et al., 2002; Warren & McGough, 1996; Warren et al., 1996; Wilson & Powell, 2001; Wood & Garven, 2000; Wood, McClure, & Birch 1996; Work Group, 1997; Yuille et al., 1993). There is a strong consensus that forensic interviews of child witnesses should be videotaped or at least audiotaped (Wakefield, 2004). Only electronic recording can ensure an accurate record of the interview (e.g., DeLipsey & James, 1988; Henry, 2000; Lamb et al., 2000; McGough, 1995, 2002; Myers, 1994; Warren & Woodall, 1999). Without a tape, there is no way to know what was said by the interviewer to elicit a response from the child. Nor is there any way to know just what the child said. Moreover, there is no way to determine whether the child's statements are the result of a leading, coercive, and contaminating interview rather than the child's account from his or her own memory and personal knowledge. Even experienced interviewers are unable to accurately recall their specific, verbatim questions and the child's answers that are necessary for evaluating an interview (Warren & Woodall, 1999). This is true even when the interviewers take verbatim notes during the interview (Lamb et al., 2000). In order to obtain a reliable statement from the child, the interviewer must approach the interview without a bias as to what happened. Interviewers with preconceived beliefs are very likely to ask questions and get answers that will confirm their beliefs (e.g., Ceci & Bruck, 1995i Pettit, Fegan, & Howie, 1990i Thompson, Clarke-Stewart, & Lepore, 1997; Kassin, Goldstein, & Savistsky, 2003). The interviewer should explore alternative hypotheses or explanations about what happened. One hypothesis is that the abuse occurred as alleged, but there are other possibilities that should be explored. Other guidelines that are generally accepted in the scientific community include:
Behavioral Indicators There are no behavioral signs or indicators that discriminate between abused and nonabused children (Berliner & Conte, 1993; Lamb, 1994; Legrand, Wakefield, & Underwager, 1989; Underwager & Wakefield, 1990, 1995). These problem behaviors are stress responses that are not unique to child sexual abuse. The same symptoms are found in children whose parents are engaged in a high-conflict divorce and other situations, including economic stress, wartime separations, absent father, natural disaster, and almost any stressful situation children experience (e.g., Bow, et al., 2002; Emery, 1982; Hughes & Barad, 1983; Jaffe, et al, 1986; Porter & O'Leary, 1980; Wallerstein & Kelly, 1980; Wolman, 1983). Although age-inappropriate sexual behavior is often claimed to be a better indication of sexual abuse, there is no reliable relationship between sexual abuse and sexualized behavior. Hagen (2003) notes that a review of 20 years of research on child sexual abuse fails to support the claim that most sexually abused children exhibit symptoms of trauma. Neither do they reliably exhibit sexualized behavior. A significant percentage are asymptomatic. Children with no history of sexual abuse act out sexually. Silovscky and Niec (2002) found that 62% of the children with sexual behavior problems in their sample had no substantiated history of sexual abuse. Friedrich et al. (2001) report that age-inappropriate sexual behaviors are also associated with physical abuse, domestic violence, excessive life stress, and exposure to family sexuality. Drach, Wientzen, and Ricci (2001) found no relationship between child sexual abuse and the presence or absence of sexual behavior problems in children referred for a forensic sexual abuse evaluation. What normal, non-abused children do sexually is more frequent and involved than most people assume (Best, 1983; Gundersen, Melas & Skar, 1981; Lamb & Coakley, 1993; Martinson, 1981, 1994, 1997). Friedrich and his colleagues, (Friedrich et al., 1991, 1998) asked mothers of nonabused children to complete questionnaires concerning sexual behavior. Although behaviors imitative of adult sexual behaviors were comparatively rare, the children exhibited a wide variety of sexual behaviors at relatively high frequencies. Many children are exposed to sexually explicit materials, soap operas, and adult magazines (Gordon, Schroeder, & Abrams, 1990a). Sexually explicit materials can readily be accessed on the Internet (Goodson, McCormick, & Evans, 2001). Brilleslijper-Kater, Friedrich, and Corwin (2004) state that "[S]exual behavior is not as valid a marker of sexual abuse as once thought, and its assessment suffers when reporters are neither objective nor informed about their child" (p. 1015). Although they believe that age-inappropriate sexual knowledge (as contrasted to behavior) has promise as a way of validating sexual abuse, an earlier study found no differences between sexually abused and non-abused children in sexual knowledge (Gordon, Schroeder, & Abrams, 1990b). Sbraga and O'Donohue (2003) argue that using symptoms exhibited by
children to support a claim of abuse constitutes "post hoc reasoning" and
that given the status of knowledge concerning relevant probabilities of
symptom/abuse versus symptom/no abuse, it is not possible to reason from
symptom observation at Time 2 to abuse status at Time 1. Gratz and
Orsillo (2003) conclude that any testimony that a child has been sexually
abused based on the child's current psychological functioning not only
fails to meet Daubert standards but is unsupported by both the science and
ethics of clinical psychology. The Timing of the Allegations Although false accusations of sexual abuse can occur at any point
(Wakefield & Underwager, 1988; Blush & Ross, 1987), they appear to be
especially common in disputes about child custody that arise after a
divorce has been granted and center around issues of visitation (Benedek &
Schetky, 1985; Ehrenberg & Elterman, 1995). If it can be determined
that the divorce occurred as a result of the abuse disclosures, the abuse
may be more likely to be true. Sirles and Lofberg (1990) studied 128
families in which sexual abuse occurred, and approximately half of these
families ended in separation and/or divorce. But, by itself, the
timing of the allegation cannot be used to prove or disprove a claim of
sexual abuse. The Nature of the Original Disclosure, Including Length of Time Between Alleged Event and Disclosure If a young child makes a spontaneous disclosure, the allegations are more likely to be true, although this is not necessarily the case with older children and adolescents. Young children are unlikely to fabricate sexually abuse allegations (e.g., Berliner & Conte, 1993; Ehrenberg & Elterman, 1995; Klajner-Diamond et al., 1987; Myers, 1992; Wakefield & Underwager, 1991; Yates & Musty, 1988; Yates, 1988). There is reason for caution when the disclosure comes about only after one parent becomes suspicious because of an ambiguous behavior and asks the child a series of leading questions about what the other parent did. This does not mean that disclosures occurring as the result of a parent questioning a child are likely to be false; such disclosures can also be true. But a spontaneous disclosure made by a young child without evident adult influence is less likely to be false. With an older child or adolescent, one must consider other possible motivational factors. Older children can make deliberate false allegations for a variety of reasons, including to gain attention, to get away from home, to retaliate against a parent for perceived mistreatment, or to gain status in a peer group (e.g., Boakes, 1999; Everson & Boat, 1989; Horowitz et al., 1984; Kellogg et al., 1993; Mantell, 1998; Mikkelsen, Gutheil, & Emens, 1992; Yates, 1991). There is no typical length of time between abuse and disclosure
— some children tell immediately, others delay disclosing for
months, and many may never do so. Most abused children, however,
tell when directly asked (Bradley & Wood, 1996; London et al., in press). Characteristics of the Child's Statement The nature and amount of details about alleged abuse have long been considered to be important in assessing the credibility of a child's statement (e.g., Burkhart, 2000; deYoung, 1986; Faller, 1988; Jones & McGraw, 1987; Jones & Seig, 1988; Sink, 1988a). The assumption is that in false allegations there is likely to be an inconsistent, sparse, or unrealistic account, whereas real accounts contain contextual descriptive information given spontaneously. Thought to be especially important have been unique or idiosyncratic details, emotion expressed that is congruent with the topic discussed, and reports of secrecy, coercion, or threats. These characteristics of a statement based on an actual event are similar to those looked for in the Criterion Based Content Analysis (CBCA) /Statement Validity Analysis procedure (Khnken & Steller, 1988; Raskin & Esplin, 1991; Rogers, 1990; Undeutsch, 1988) . Although the CBCA procedure shows differences between more and less credible accounts, it is not accurate or reliable enough to be used in court (Brigham, 1999; Lamb, 1998; Lamb et al., 1997a, 1997b; Ruby & Brigham, 1997, 1998; Santtila, et al., 2000). The amount and quality of details do not discriminate between real and false accounts when the child has been subjected to prior suggestive interviews or when the interviewer fails to ask open-ended questions (Bruck, Ceci, & Hembrooke, 2002). Unless the information is obtained from free-recall memory, it is difficult to evaluate the credibility of the child's statement. There must be a taped statement obtained as soon as possible from a child who has made a spontaneous disclosure, and the statement must be based upon the child's narrative account and not on responses to leading questions. Age and verbal ability can also affect the details in the child's statement. The difficulty in assessing the veracity of children's statements after
they have been previously interviewed is demonstrated by Steve Ceci (e.g.
Ceci & Bruck, 1995; Ceci et al., 1994). He showed videos of the
children in the final interviews in his experiments to professionals and
asked them to select which children were providing genuine accounts and
which were providing false accounts. The professionals were never
able to do better than chance would allow. Nature of the Allegations The behaviors alleged should be examined in terms of what is known about the behavior of actual sexual abusers and incest perpetrators (Wakefield & Underwager, 1994). Are the behaviors simply not plausible? In false allegations, the child may describe something that is highly improbable or even physically impossible. If the allegations have grown and expanded over time in a child who has
been placed in therapy or interviewed several times, this is most likely
due to the influence of adults who may be encouraging and reinforcing the
child for talking about abuse. Although real accounts contain variations
and minor inconsistencies, there should be no major inconsistencies. There
is no support for the belief that disclosure of sexual abuse is a process
in which the child initially denies abuse, later makes a tentative
disclosure, and finally, over time, provides more and more details
(Bradley & Wood, 1996; Bruck & Ceci, 2004; London et al., in press). The Age of the Child If the interviews of the child, both formal and informal, have been
leading and suggestive. and if the adults questioning the child have had a
preexisting bias as to what has happened, younger children will be more
vulnerable to making false statements in response to the suggestive
questions. There are clear age trends in the suggestibility of child
witnesses, with preschool children being more vulnerable to suggestion
than school-aged children or adults (Ceci & Bruck, 1993, 1995). In
their study on the effects of misleading suggestions from parents on
children's later reports, Poole and Lindsay found that although all their
subjects (ages 3 to 8) were influenced by the exposure to misinformation
from parents, the younger children were less accurate in the later
interviews. But it is a misconception that suggestibility is only a
problem for preschoolers; the suggestive techniques used in the preschool
studies also produce false reports in adults, and susceptibility to
suggestion is highly common in older children (Bruck & Ceci, 2004). Medical Evidence Most sexual abuse does not result in physical findings. A study
of 2,584 children referred for a sexual abuse examination found that only
4% had abnormal examinations (Heger et al., 2002). Therefore, the
absence of medical findings does not rule out abuse. But vague,
nonspecific physical findings such as anal dilatation or anal scarring,
redness in the genital area, "enlarged" vaginal openings, and bumps,
mounds, tags, and clefts on the hymen do not support a finding of abuse
since these are found in normal, nonabused children (e.g., Adams, 1995;
Gardner, 1992; Goodyear-Smith, Laidlaw, 1998; Heger et al., 2002; Ingram,
Everett, & Ingram, 2002; McCann, 1998; McCann et al., 1989, McCann &
Voris, 1990, 1992; McCann & Wells, 1990, Paradise, 1989). The only
physical findings which provide strong support of sexual abuse are
pregnancy, acquired gonorrhea or syphilis, acute injuries, or the presence
of sperm or semen. Behavior and Personality Characteristics of the Accusing Parent The information on the personality and characteristics of the accusing parent is primarily anecdotal and based upon the observations of professionals who have been involved in these cases; therefore, these observations should be taken with caution. Several professionals (e.g., Bresee et al., 1986; Ehrenberg & Elterman, 1995; Faller, 1990b; Gardner, 1987; Jones & Seig, 1988; Rand, 1989, 1990, 1993; Schaefer & Guyer, 1988; Wakefield & Underwager, 1991) have observed that, whereas in cases of actual abuse the parent is willing to consider other possible explanations for the child's behavior or statements, in false allegations the parent is apt to refuse to consider any explanations other than sexual abuse. In real cases, the parent allows the child to be interviewed alone, but in false cases s/he is likely to insist on being present during the interview. Also, in false cases, when the professional says that abuse is unlikely, the parent may shop for other professionals who will verify her suspicions. There is some evidence that parents involved in false allegations are
more likely to have personality disorders and other psychiatric problems (Benedeck
& Schetky, 1985; Gardner, 1998; Green & Schetky, 1988; Jones & McGraw,
1987; Klajner-Diamond et al. 1987; Rogers, 1990; Ross & Blush, 1990;
Wakefield & Underwager, 1990, 1991). However, as Bresee et al.
(1986) point out, although women who make false allegations may be
histrionic or combative, such troubled women with vengeful motives may
nevertheless have discovered genuine evidence of sexual abuse. Behavior of the Professionals Involved Professionals should not presume either guilt or innocence.
Klajner-Diamond et al. (1987) believe that one factor suggesting a false
accusation is a professional committed prematurely to the truth of the
allegation. Blush and Ross (1990) observe that false cases are
characterized by a loss of control by the agencies involved in the case
early on when professionals decide that abuse is real before doing a
careful investigation. Mantell (1988) notes that child sexual abuse
allegations tend to develop a life of their own that resists satisfactory
resolution. I have observed that in cases that turn out to be false,
a professional quickly reaches a decision that abuse had occurred, the
decision was made on the basis of limited data, disconfirming data was
ignored, and no alternative options were examined. If the
determination of abuse was made quickly and alternative explanations or
hypotheses were not explored, the allegation should be treated with more
caution. RECOMMENDATIONS Sexual abuse allegations developing in custody disputes are complicated and difficult to sort out. Professionals must remain open and objective, explore alternative explanations, and attend to what is known. They must carefully examine each case and not immediately dismiss an allegation as false because the parents are in the midst of a divorce. But they must also guard against a presumption of guilt, and resist aligning themselves with the reporting parent's agenda. Specific recommendations include:
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