Special Problems with Sexual Abuse Cases
In J. Ziskin (ed.), Coping with psychiatric and psychological
testimony, Supplement to the Fifth Edition () (pp. 136-147). Los Angeles, CA:
Law and Psychology Press.
Ralph Underwager and Hollida Wakefield
In the fifth edition, 1995, we mentioned several conclusions about the
child witness that are generally accepted by the scientific community and
could be said to meet the traditional Frye standard, as well as the newer
Daubert. These conclusions, which were summarized by Ceci and Bruck (1993),
are of sufficient importance that we will repeat them in this supplement.
Any mental health professional who makes contrary claims is vulnerable to
cross-examination. Ceci and Bruck's major three conclusions are:
First and foremost, contrary to the claims made by some...there do appear
to be significant age differences in suggestibility, with preschool-aged
children being disproportionately more vulnerable to suggestion than either
school-aged children or adults (p. 431).
Ceci and Bruck also observe that the literature does not support the claim
that children are not suggestible concerning central events:
Our review of the literature indicates that children can indeed be led to
make false or inaccurate reports about very crucial, personally experienced,
central events (p. 432).
Ceci and Bruck's next major conclusion is:
The second major conclusion is that contrary to the claims of some, children
sometimes lie when the motivational structure is tilted toward lying (p.
Finally, they state:
Third, notwithstanding the aforementioned two points, it is clear that children-even
preschoolers-are capable of recalling much that is forensically relevant
They add that is is extremely important to examine the conditions prevalent
at the time of the child's original report:
If the child's disclosure was made in a nonthreatening, nonsuggestible atmosphere,
if the disclosure was not made after repeated interviews, if the adults
who had access to the child prior to his or her testimony are not motivated
to distort the child's recollections through relentless and potent suggestions
and outright coaching, and if the child's original report remains highly
consistent over a period of time, then the young child would be judged to
be capable of providing much that is forensically relevant. The absence
of any of these conditions would not in and of itself invalidate a child's
testimony, but it ought to raise cautions in the mind of the court (p. 433).
Since this 1993 article, credible scientific research has continued to accumulate
regarding the suggestibility of children to adult social influence. Ceci
and Bruck's 1995 book published by the American Psychological Association,
Jeopardy in the Courtroom, contains the best general discussion. This book
should be read by any attorney or mental health professional who is involved
in any way with child witnesses and sexual abuse allegations. The book is
built around seven actual cases and the relevant scientific research is
discussed in terms of the interviews and investigation of these cases. The
research is current and includes several studies that more closely approximate
what happens in the real world, which meets the plea for more ecologically
sound research and increases the generalizability of the findings.
Several studies described by Ceci and Bruck (1995) indicate that suggestively
interviewed children may produce false statements about fictitious events,
including central events and errors of commission (Bruck, Ceci, Francoeur,
& Barr, 1995; Ceci, Crotteau-Huffman, Smith, & Loftus, 1994; Ceci,
Loftus, Leichtman, & Bruck, 1994; Leichtman & Ceci, 1995; Lepore
& Sesco, 1994). These false reports may be coherent, detailed and believable.
Leichtman and Ceci (1995) showed videotapes of the statements of three children
in their study to researchers and clinicians at two professional conferences
to see if they could discriminate between the erroneous reports and the
accurate ones. The majority of both audiences could not reliably tell whether
the events reported by the children had occurred or not and could not tell
which children were the most accurate. In fact, the one child who had described
the events accurately was rated the least credible while the most inaccurate
child was seen as the most credible. This demonstration of the inability
of mental health professionals to discriminate true and false accounts on
the basis of hearing a child's report makes it difficult to support an ability,
based on experience alone, to give an opinion on the ultimate issue. Leichtman
and Ceci (1995) observe that this suggests the accuracy of children's reports
is extremely difficult to discern when children have been subjected to repeated
The conclusions from the current research are clear: When children are interviewed
skillfully and appropriately and supported and encouraged to tell their
story in their own words, they can provide accurate and forensically useful
information. But when interviewers use suggestive, leading, specific, and
coercive questioning to get the child to confirm preexisting biases about
abuse, they risk eliciting false statements about abuse.
Despite growing knowledge about how interviews should be done to increase
the reliability of the information elicited, many interviews in actual cases
continue to be inappropriate and contaminating (Underwager & Wakefield,
1990; Warren, Woodall, Hunt, & Perry, 1996). Although Myers (1996) maintains
that there is no universally agreed-on protocol for interviewing children,
there are general principles that the scientific community accepts for conducting
a noncontaminating interview and attorneys and experts for both sides need
to be familiar with this literature. We discuss this in the fifth edition.
(In addition to the references cited in the fifth edition see Adams, 1996;
Bull, 1995; Davies et al., 1996; Myers, 1996; L. D. Reed, 1996; Warren &
McGough, 1996; Wood, McClure, & Birch, 1996; Yuille, Hunter, Joffe,
& Zaparniuk, 1993 for discussions of general principles for conducting
effective, noncontaminating interviews of children.)
As we stated in the fifth edition, although young children can provide forensically
useful information, adults must let them do this. The free recall of young
children is limited but accurate. But, since young children provide limited
information in free recall, the tendency is for interviewers to start using
leading and suggestive questions, which can influence the child and distort
the story. In addition, young children may try to tell the interviewer what
they believe the interviewer wants them to say and they may answer questions
they do not understand and about which they have no information.
Because of this, there is general agreement in the scientific community
that interviewers should encourage children to tell in their own words what
has happened by asking open-ended questions and encouraging free narratives.
Questions such as, "and then what happened" may encourage more
details. Children should be told not to try to answer questions when the
answer isn't known and pressure and coercion and selective reinforcement
of responses must be avoided. If closed questions must be asked, they should
come only at the end of the interview, and the interviewer should not provide
information that has not been previously mentioned by the child. Repeated
questions should be avoided since this tells children the previous answers
were not acceptable. All interviews should be videotaped, or at least audiotaped,
since a tape is the only means whereby the procedures and information obtained
during the interview can be accurately documented. Discussions of "good
touch" and "bad touch" should not be used since these are
confusing and potentially contaminating. Also, as discussed below, anatomical
dolls should be avoided.
Deficiencies in interviews can be pointed out in trial and defense experts
can testify concerning appropriate interview techniques and critique the
techniques in the instant case. (See the above references along with those
in the fifth edition.) Since such testimony is concerned with the behavior
of the interviewers rather than the credibility of the child, it does not
invade the province of the finder-of-fact. Two recent appellate rulings
have dealt with the admissibility of testifying about how children should
be interviewed. In State v. Gersin (1996), the Ohio Supreme Court ruled
that the defense expert should have been allowed to testify as to the proper
protocol for interviewing child witnesses regarding alleged abuse. The court
noted that, rather than infringing on the fact finder's role, such testimony
by an expert assists the trier-of-fact. In United States v. Rouse et al.
(1996), the Eighth Circuit ruled that the defense expert should have been
allowed to testify that the children's evidence and testimony became tainted
by suggestive influences to which the children were subject in the investigation
and trial. However, this decision was later reversed by the Eighth Circuit.
In some instances persons who claimed to be wrongly convicted have relied
upon the development of this research evidence to claim there is now new
evidence available. We have supplied affidavits describing the recent research
and they have won new trials and subsequently been acquitted.
The Taint Hearing
The New Jersey Supreme Court in State v. Michaels (1994) created a procedure
allowing defense attorneys to request a pretrial hearing - called a "taint"
hearing - to challenge the investigative interviews of the children. The highly
publicized Kelly Michaels preschool case resulted in a conviction that was
overturned by New Jersey's intermediate Court of Appeals five years later
(State v. Michaels, 1993). In overturning the conviction, the court noted
that "the questioning of the children was so suggestive and coercive
that they were rendered incompetent to testify" (p. 493). It ruled
that, if the prosecution wanted to retry the case, it would have to hold
a pretrial taint hearing. The prosecution appealed to the New Jersey Supreme
Court for reconsideration of this specific holding and the court upheld
the requirement for a taint hearing.
Myers (1996) observes that, although the Michaels decision creates official
policy only for New Jersey, the taint hearing procedure is likely to spread
to other states as defense attorneys request such hearings, and he mentions
other states including Delaware, Massachusetts, New York, Ohio, and the
military where such hearing have taken place. We have been been involved
in cases involving taint hearings in Wisconsin and Pennsylvania.
Defense attorneys should request a taint hearing whenever they believe suggestive
and coercive interviews may have destroyed the child's ability to testify
truthfully or when they believe that the child's statements to others are
unreliable because of defective interviewing. The New Jersey Supreme Court
states, "The initial burden to trigger a pretrial taint hearing is
on the defendant; defendant must make showing of 'some evidence' that victim's
statements were product of suggestive or coercive interview techniques"
(p. 1372). If the judge then believes that the pretrial interviews were
seriously suggestive and coercive, he may rule that any statements the child
has made to others are tainted and cannot be used in court to support abuse.
The judge can also rule that the child's memory is so distorted that any
testimony will be unreliable and the child should not be permitted to testify
Many people believe that taint hearings provide a much-needed safeguard
to defendants and a remedy for defective interviews. We think they are a
step forward and provide a fair way of handling suggestive and coercive
interviews. But it must also be clear that the presence of suggestive, coercive
interview procedures in the development of an accusation does not in itself
make the accusation false. The totality of the information about a given
accusation needs to be assessed carefully before determining that leading
and coercive questioning invalidates an accusation.
Others are disturbed about this ruling. Myers (1995, 1996) fears taint hearings
will perpetuate unwarranted skepticism about child witnesses, be overused
by defense attorneys, and undermine the state's ability to protect children.
He concludes that the disadvantages of taint hearings dwarf the benefits
and recommends that children's statements should be suppressed only in rare
circumstances. However, this anxiety is speculative conjecture and Myers
presents no data to suggest such a concern.
Taint hearings will involve expert testimony by mental health professionals.
Both prosecutors and defense attorneys must be familiar with the current
literature on child witnesses in order to examine effectively mental health
experts who are either defending or criticizing the interviews. All interviews
will have some elements of suggestiveness in them and suggestiveness alone
does not necessarily violate the defendant's due process rights. Defense
attorneys must persuade the judge that the interview was so unnecessarily
suggestive that the child's statements cannot be considered reliable. Prosecutors
must present evidence that the interview was not so suggestive as to make
the child's statements unreliable.
The role and function of mental health professionals in taint hearings is
somewhat new and may be unusual for many forensic mental health professionals.
Professional ethical considerations should be carefully reviewed and any
opinions in a taint hearing should be able to be supported by credible scientific
research that meets the current standards of admissibility. This raises
the issue of the U.S. Supreme Court's most recent ruling on the nature of
scientific evidence and its admissibility.
Daubert vs. Merrell Dow Pharmaceuticals
"Understanding the implications of the Daubert decision will most likely
require significant effort since this is a revolutionary change that shifts
the entire enterprise into new and untried ground . . . The process of working
out the implications of this decision will likely take many years, countless
cases, and a multitude of confused attorneys and irate judges . . . One
thing is certain. Scientists who offer expert testimony in the courtroom
need to be knowledgeable and skilled in dealing with the philosophy of science
and the issues raised by the establishment of the criterion of falsifiability
as the determinant of science" (Underwager & Wakefield, 1993).
The United States Supreme Court decision in Daubert vs. Merrell Dow Pharmaceuticals
in June, 1993 was discussed in the fifth edition, chapter 23. This ruling
changed the criteria by which scientific testimony is admitted as evidence
in court. In summary, the ruling states that the major criterion of the
scientific status of a theory is its falsifiability, refutability, or testability.
Justice Blackmun identified four factors that the court should consider
in determining whether an expert's opinion is valid under rule 702:
1. Whether the expert's theory or technique has been or can be tested or
2. Whether the theory or technique has been subjected to peer review or
3. What the known or potential rate of error is for any test or scientific
technique that has been employed.
4. Whether the technique is generally accepted in the scientific community.
Although general acceptance in the scientific community (the Frye test)
is one consideration, the lack of such by itself does not preclude the proposed
testimony. At the time the ruling was rendered, there was disagreement as
to whether its major effect would be to make admissible new scientific evidence
that was excluded under Frye or whether it would render inadmissible testimony
based on such concepts and theories as the child sexual abuse accommodation
syndrome and repressed memories (see Chapter 1).
Since the decision in 1993 there have been numerous cases that have reached
the appellate court level (see Chapter 1 for Daubert and the Child Sexual
Abuse Accommodation Syndrome). Several journal articles have dealt with
the ramifications of the ruling (e.g., Imwinkelried,1993, 1994; Gless, 1995;
Faigman, 1995; Melton, 1993; Richardson, Ginsburg, Gatowski, & Dobbin,
1995; J. E. Reed, 1996; Solomon & Hackett, 1996; Urban, 1996). Most
of the rulings and the articles have applied the criteria to specific issues
in determining the scientific status of evidence and thus admissibility.
However, these decisions and analyses are somewhat short sighted and none
have yet dealt with what may be the most powerful new principle set forth
in the Daubert decision-the understanding of the nature of the scientific
Most professionals in the justice system, law enforcement, and social work
assume that the nature of science is systematic discovery of the unchanging
laws of nature that are the basis for an orderly universe and a stable existence.
Many mental health professionals also view science in this way and assume
that science, including social science, proves various propositions. Not
only does the Daubert decision change that somewhat unsophisticated concept
to the acceptance of the criterion of falsifiability, Justice Blackmun also
sets forth the limits of science. Science does not produce theories that
are "immutably true." Justice Blackmun also asserts: "Of
course, it would be unreasonable to conclude that the the subject of scientific
testimony must be 'known' to a certainty; arguably, there are no certainties
in science" (Daubert vs. Merrell Dow Pharmaceuticals, 1993, p. 2795).
The Supreme Court's recognition of the uncertainty of the scientific venture
will have consequences far beyond the limited issue of the admissibility
of evidence claimed to be scientific and the role of expert witnesses. This
perception will likely affect diverse issues such as invoking judicial notice,
hearsay, and whether a party has established an evidentiary case able to
avoid a directed verdict. It will likely affect the recognition and incorporation
of statistical information, the understanding and interpretation of reasonable
doubt and preponderance of the evidence (Imwinkelried, 1996). It may well
shift the network of epistemological assumptions undergirding the entire
justice system and all of jurisprudence. The best efforts of mental health
professionals and legal scholars must be drawn into the clarification and
development of the implications of this decision. It will be both exciting
and exasperating, but whatever the process or the outcomes, it cannot be
As noted in the fifth edition, initial claims about medical evidence suggestive
of child sexual abuse were often overstated and mistaken. But research on
the appearance of the genitals in normal, nonabused children performed by
McCann and his colleagues (McCann et al., 1989, 1990a, 1990b) has dramatically
changed this situation. These researchers found a high incidence of nonspecific
findings such as erythema, tags, fissures, scars, adhesions, notches, thickening,
and anal relaxation in their sample of nonabused children. They also found
that the vertical and horizontal hymenal orifice diameters varied, both
by age group, and according to the technique and position used to measure
These findings are well known in the medical community and competent pediatricians
are now much more cautious about concluding that nonspecific findings indicate
sexual abuse. But some pediatricians continue to testify that such findings
are "consistent with" abuse-testimony that is apt to be given
more weight in a trial than it deserves. The attorney must therefore be
prepared to vigorously cross-examine the medical expert who testifies that
nonspecific physical findings indicate sexual abuse.
Although there is agreement in the scientific community that medical examinations
are important, it remains the case that most victims of verified abuse have
normal or nonspecific findings (Adams, 1995; Adams, Harper, Knudson, &
Revilla, 1994; Lamb, 1994). Therefore, normal findings cannot be used to
rule out abuse unless the allegations are of abuse that would be expected
to result in noticeable physical findings. An excellent resource is an atlas
and guide by Heger and Emans (1992). This book contains 120 color plates
illustrating the many variations in the genitalia of nonabused children
and showing the types of findings in abused children. Also, some researchers
have attempted to systematize the research findings using a classification
scale for genital findings (Adams, 1992; Bays & Chadwick, 1993). These
should be helpful resources for attorneys.
Dolls and Drawings
The use of anatomical dolls remains extremely controversial, with some professionals
claiming they are useful and others contending that they are too suggestive.
They cannot be said to be generally accepted in the scientific community
and the anatomical doll techniques are unlikely to meet Daubert. There remains
general agreement that if the dolls are used, it must be with great care,
that the child's interaction with the dolls should not be the basis for
an opinion or conclusion about sexual abuse, and that they should not be
used with very young children who are unable to use dolls as symbols or
representations (see fifth edition for references and a discussion of this).
Efforts to support continued use of the dolls include recognition of the
problems and the limitations on their usefulness (Boat, & Everson, 1996;
Simkins, & Renier, 1996). Attorneys should be familiar with the literature
cited in the fifth edition and be prepared to use it to cross-examine examiners
who have used the dolls.
In the fifth edition, we concluded that Children's drawings, such as the
House-Tree-Person (HTP) and Kinetic Family Drawings, as well as free drawings,
cannot be used diagnostically to substantiate sexual abuse. The literature
since then continues to support this conclusion. Smith and Dumont (1995)
state that research spanning four decades has failed to provide any compelling
evidence in support of the validity of human figure drawings in assessing
personality, behavior, or intelligence (p. 299). They note that the confirmatory
bias that is expressed in anchoring errors predisposes clinicians to find
support for their initial opinions in whatever material the client provides.
Any conclusions about sexual abuse based on a "sign" interpretation
of drawings should be vigorously challenged in cross examination. Mental
health professionals should be asked to provide supportive data for such
interpretations and to describe contrary data.
A recent New Zealand research report also calls into question the utility
of drawings during an interrogation as a prompt or priming technique (Rawls,
1996). Drawings are reported to have increased errors and confabulation
in children's accounts.
Evaluations of the Effects of Child Sexual Abuse
In the fifth edition, we noted that the major error we see in plaintiffs'
experts is the assumption that sexual abuse inevitably causes alleged victims
severe and long-lasting psychological problems. We cited the literature
that discussed the fact that not all victims of childhood abuse show later
adjustment problems. Since then, there have been three important articles
dealing with this issue.
Levitt and Pinnell (1995), in a comprehensive article, examined the relationship
between childhood sexual abuse and adult psychopathology. They maintain
that empirical investigations of childhood sexual abuse conclude that not
all victims are emotionally injured and a majority of victims suffer no
extensive harm. They examined four reviews of the literature, comprising
94 studies that investigated the impact of childhood sexual abuse. Some
reported that most victims have been harmed; a few reported no harm; and
most found that a minority of victims had been harmed. A dysfunctional home
is more likely to result in emotional disturbance than is any single type
of sexual abuse. Levitt and Pinnell state that "the traditionally accepted
link between childhood sexual abuse as an isolated cause and psychopathology
in childhood lacks empirical verification" (p. 151).
Bauserman and Rind (1997), in a review of the nonclinical literature, report
that research with nonclinical samples reveals a broad range of reactions,
with most reactions being either neutral or positive. They also observe
that the effects of boys' early sexual experiences with older persons cannot
be accurately inferred from clinical research alone or from girls' experiences.
Rind and Harrington (undated) examined the psychological correlates of early
sexual experiences and the validity of inferring that childhood sexual abuse
causes later psychological maladjustment. They note that the assumption
that child sexual abuse destroys adult mental health is a fundamental assumption
of many child sexual abuse "experts" and that notions such as
repression and recovered memory therapy rest upon this basic assumption.
However, the studies supporting these assumptions suffer from a number of
methodological problems. When family dysfunction is controlled and nationally
representative samples and college samples are used, the assumption that
sexual abuse typically damages mental health is not supported. Family background
and other factors are more strongly related to later psychological adjustment
than is sexual abuse per se.
Attorneys who are involved in cases concerning alleged emotional damage
due to sexual abuse should be familiar with this information. Any mental
health professional who makes broad claims that current emotional damage
has been caused by childhood sexual abuse must be able to respond to the
points raised in these articles.
The continued accumulation of scientific research remains supportive of
efforts to increase the accuracy of determinations and opinions expressed
in response to accusations of sexual abuse. Legal scholarship and philosophy
of science are likely to produce marked changes in jurisprudence and development
of different procedures in the justice system.
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