Chapter 6 CHILD SEXUAL ABUSE

Transcription

Chapter 6 CHILD SEXUAL ABUSE
§ 6.01 INTRODUCTION
Sexual abuse is often difficult to prove.1 In Pennsylvania v. Ritchie,2 the U.S. Supreme Court
wrote, ―Child abuse is one of the most difficult crimes to detect and prosecute, in large part
because there often are no witnesses except the victim.‖3 In the same vein, the New York Court
of Appeals wrote, ―Abuse is difficult to detect because the acts are predominantly nonviolent and
usually occur in secret rendering the child the only witness.‖4
Unlike physical abuse, where the child's injuries often provide powerful evidence, medical
evidence is lacking in most sexual abuse cases.5 Typically, the child's testimony is the most
1
Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Eze v. Senkowski, 321 F.3d 110, 112 (2d
Cir. 2003)(―The prosecution of child sexual abuse is challenging. With third-party witnesses often
unavailable, these cases frequently hinge on judgments about credibility in which jurors must
choose between contradictory stories proffered by the defendant and the complainants.‖); Doe v.
United States, 976 F.2d 1071, 1074 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)(―Detecting
sexual abuse, and convicting its perpetrators, is problematic because of the lack of witnesses, the
difficulty of obtaining corroborative physical evidence, and the typical reluctance or inability of
the victim to testify against the defendant.‖); In re Cindy L., 17 Cal. 4th 15, 28, 947 P.2d 1340,
69 Cal. Rptr. 2d 803, 811 (1997)(―There are particular difficulties with proving child sexual
abuse: the frequent lack of physical evidence, the limited verbal and cognitive abilities of child
victims, the fact that children are often unable or unwilling to act as witnesses because of the
intimidation of the court room setting and the reluctance to testify against their parents.‖); State v.
Chauvin, 846 So. 2d 697, 702 (La. 2003)(―We begin by noting that child sexual abuse cases are
not easy to prosecute.‖); State v. Miller, 718 So. 2d 960 (La. 1998)(―Child sexual abuse cases
raise concerns for the judicial system not present in other criminal cases. Frequently, in cases
involving the sexual abuse of children, the offense takes place in secret, the victim is young,
vulnerable, and reluctant to testify, and there is often no physical or other evidence the abuse took
place.‖); State v. Saunders, 992 P.2d 951 (Utah 1999); State v. C.J., 63 P.3d 765 (Wash. 2003).
2
480 U.S. 39 (1987).
3
480 U.S. at 60.
4
In re Nicole V., 71 N.Y.2d 112, 117, 518 N.E.2d 914, 915, 524 N.Y.S.2d 19 (1987).
5
See § 6.07.
See Doe v. United States, 976 F.2d 1071, 1074 (7th Cir. 1992), cert. denied, 114 S. Ct. 58
(1993)(―Detecting sexual abuse, and convicting its perpetrators, is problematic because of the
lack of witnesses, the difficulty of obtaining corroborative physical evidence, and the typical
reluctance or inability of the victim to testify against the defendant.‖); In re Cindy L., 17 Cal. 4th
15, 28, 947 P.2d 1340, 69 Cal. Rptr. 2d 803, 811 (1997)(―There are particular difficulties with
proving child sexual abuse: the frequent lack of physical evidence, the limited verbal and
cognitive abilities of child victims, the fact that children are often unable or unwilling to act as
witnesses because of the intimidation of the court room setting and the reluctance to testify
against their parents.‖); State v. Miller, 718 So. 2d 960 (La. 1998)(―Child sexual abuse cases raise
concerns for the judicial system not present in other criminal cases. Frequently, in cases involving
the sexual abuse of children, the offense takes place in secret, the victim is young, vulnerable, and
reluctant to testify, and there is often no physical or other evidence the abuse took place.‖);
Commonwealth v. Federico, 425 Mass. 844, 683 N.E.2d 1035, 1041 n.12 (1997)(―Evidence of
1
important evidence. When children are prepared for the courtroom and provided emotional
support through the process, most testify effectively. Yet, testifying is not easy.6 The Washington
Supreme Court observed, ―Feeling intimidated and confused by courtroom processes,
embarrassed at having to describe sexual matters, and uncomfortable in their role as accuser of a
defendant who may be a parent, other relative or friend, children often are unable or unwilling to
recount the abuses committed on them.‖7 Some children are too young, too traumatized, or too
frightened to testify effectively or at all.8
To bolster the testimony of children, attorneys rely on several sources of evidence, including
hearsay, the subject of Chapter 7, evidence of the defendant's other crimes, wrongs, or acts,
analyzed in Chapter 8, and expert testimony, the focus of the present chapter.
§6.02 PREVALENCE OF CHILD SEXUAL ABUSE
Child sexual abuse is common.9 The true prevalence of sexual abuse is unknown because the
crime occurs in secret.10 Berliner writes, ―Most incidents of sexual abuse are not reported to
physical injury of abuse is not always available in child sexual abuse cases, but is admissible
when available.‖).
6
Commonwealth v. Federico, 425 Mass. 844, 683 N.E.2d 1035, 1038 n.7 (1997)(―Sexually
abused children may be hesitant witnesses, especially when confronting their abusers.‖).
7
State v. Jones, 112 Wash. 2d 488, 772 P.2d 496, 499 (1989).
8
Folse v. Folse, 738 So. 2d 1040, 1049 (La. 1999)(―Children often make poor witnesses
because of their age, immaturity, and courtroom intimidation.‖); Care & Protection of Rebecca,
419 Mass. 67, 643 N.E.2d 26, 33 (1994)(―There generally are no witnesses to an act of abuse
other than the victim and the perpetrator. Corroborative evidence often will be lacking. A
youthful victim, although truthful, may be a poor witness, may refuse, or may be unable, to
testify.‖); State v. Jones, 112 Wash. 2d 488, 772 P.2d 496, 499 (1989)(―Acts of abuse generally
occur in private and in many cases leave no physical evidence. Thus, prosecutors must rely on the
testimony of the child victim to make their cases. Children are often ineffective witnesses,
however. Feeling intimidated and confused by courtroom processes, embarrassed at having to
describe sexual matters, and uncomfortable in their role as accuser of a defendant who may be a
parent, other relative or friend, children often are unable or unwilling to recount the abuses
committed on them.‖).
9
Lucy Berliner, Child Sexual Abuse: Definitions, Prevalence, and Consequences. In John
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232 (2011)(Sage); David
Finkelhor & Lisa Jones, Why Have Child Maltreatment and Child Victimization Declined? 62
Journal of Social Issues 685-716, at 685 (2006)(―Sexual abuse started to decline in the early
1990s, after at least 15 years of steady increases. From 1990 through 2004, sexual abuse
substantiations were down by 49%.‖); Noemi Pereda, Georgina Guilera, Maria Forns & Juana
Gomez-Benito, The International Epidemiology of Child Sexual Abuse: A Continuation of
Finkelhor (1994), 33 Child Abuse & Neglect 331-342 (2009)(―This study examined the
prevalence of child sexual abuse since 1994 and compared the findings of those obtained in a
comparable review by Finkelhor (1994). The results obtained from a variety of countries suggest
that child sexual abuse remains an international problem.‖ pp. 336-337).
10
Ann-Christin Cederborg & Michael E. Lamb, The Need for Systematic and Intensive
Training for Forensic Interviewers. In F. Columbus (Ed.), Child Abuse and Its Impact
(_____)(Nova)(―It is not possible to assess the true incidence of child sexual abuse because
2
authorities, and many episodes are not revealed to professionals, friends or family members.‖11
Finkelhor observes, ―Because sexual abuse is usually a hidden offense, there are no statistics on
how many cases actually occur each year.‖12
It is estimated that approximately 20 percent of girls experience some form of sexually
inappropriate experience during childhood, from minor touching to brutal rape.13 The rate of
abuse among boys appears to be lower than among girls.14 Five to fifteen percent of boys are
sexually abused.15 Sexual abuse occurs at all ages, from infancy through adolescence.16
Most victims know the perpetrator.17 Finkelhor writes, ―Sexual abuse is committed primarily
by individuals known to the child, unlike the child molester stereotype that prevailed until the
1970s. In adult retrospective surveys, victims of abuse indicate that no more than 10% to 30% of
offenders were strangers, with the remainder being either family members or acquaintances.‖18
Because the perpetrator often has continuing access to the victim, multiple episodes of sexual
abuse are common.19
Adolescents sexually abuse other children.20 Berliner writes, ―In nonclinical general
population samples, teenagers represent up to 40% of offenders . . .‖21 A portion of adult sex
sexual abuse is a very private and easily concealed crime which typically involves only the victim
and the perpetrator.‖).
11
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 216 (2011)(Sage).
12
David Finkelhor, Current Information on the Scope and Nature of Child Sexual Abuse, 4
The Future of Children 31-53, at 32 (1994).
13
14
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232
(2011)(Sage)(―Compared to girls, boys are older at onset of victimization, more likely to be
abused by nonfamily members, and more likely to be abused by women and by offenders who are
known to have abused other children.‖p. 219. ―Girls are at higher risk for sexual abuse than
boys.‖ p. 220).
15
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 217 (3d ed.)(Sage).
16
Sonja N. Brilleslijper-Kater, William N. Friedrich, & David L. Corwin, Sexual Knowledge
and Emotional Reaction as Indicators of Sexual Abuse in Young Children: Theory and Research
Challenges, 28 Child Abuse & Neglect 1007-1017, at 1007 (2004)(―Research indicates that
between 25% and 35% of all sexual abuse victims involve children under the age of 7.‖).
17
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 219
(2011)(Sage)(―strangers account for a relatively small proportion (5% to 15%)‖ of offenders).
18
19
20
Judith Becker, Offenders: Characteristics and Treatment, 4 The Future ofChildren 176-197
(1004).
21
3
offenders begin their deviance during adolescence.22
§6.03 SHORT- AND LONG-TERM EFFECTS OF
SEXUAL ABUSE
Sexual abuse has short- and long-term effects.23 Berliner writes, ―Research conducted over
22
Ian A. Nisbit, Peter H. Wilson, & Stephen W. Smallbone, A Prospective Longitudinal
Study of Sexual Recidivism Among Adolescent Sex Offenders, 16 Sexual Abuse: A Journal of
Research and Treatment 223-234, at 223-224 (2004)(―Early studies of adult sex offenders
suggested that adolescent onset of sexual offending was common. This early onset hypothesis
appeared to be confirmed by Abel and his colleagues' confidential self-report study in which 58%
of more than 500 nonincarcerated ‗paraphiliacs‘ reported onset of deviant sexual interests prior to
age 18. By extension, though, almost half (42%) of this sample reported the onset of deviant
sexual interest after 18 years of age.… Other researchers employing similar confidential selfreport methods have found that late onset of sexual offending is at least as common as early
onset.‖).
23
Jennifer J. Freyd, Frank W. Putnam, Thomas D. Lyon, Kathryn A. Becker-Blease, Ross E.
Cheit, Nancy B. Siegel, & Kathy Pezdek, The Science of Child Sexual Abuse, 308 Science 501
(22 April 2005)(―CSA is associated with serious mental and physical health problems, substance
abuse, victimization, and criminality in adulthood. Mental health problems include posttraumatic
stress disorder, depression, and suicide. CSA may interfere with attachment, emotional
regulation, and major stress response systems.‖); Tristan Milot, Diane St-Laurent, Louise S.
Ethier & Marc A. Provost, Trauma-Related Symptoms in Neglected Preschoolers and Affective
Quality of Mother-Child Communication, 15 Child Maltreatment 293-304, 293 (2010)(―The idea
of considering child maltreatment as a very traumatic experience finds support in several studies
reporting high prevalence of postraumatic stress disorder (PTSD) in physically abused children
and in sexually abused children.‖).
See People v. Weiss, 133 P.3d 1180, 1185 (Colo. 2006)(―Sexual assault is among the most
intimate and personally-devastating invasions a person may experience in his or her lifetime. It
typically produces emotionally-destructive reverberations for the victim long after its occurrence.
This can be particularly true when the victim is a child.‖)
There are several theories to account for the harm caused by sexual abuse. Among the
theories, the conceptual framework articulated by Finkelhor and Browne is widely accepted.
David Finkelhor & Angela Browne, The Traumatic Impact of Child Sexual Abuse: A
Conceptualization 55 American Journal of Orthopsychiatry 530-541 (1985). Finkelhor and
Browne wrote:
The model proposed here postulates that the experience of sexual abuse
can be analyzed in terms of four trauma-causing factors, or what we will
call traumagenic dynamics—traumatic sexualization, stigmatization,
betrayal, and powerlessness. These traumagenic dynamics are
generalized dynamics, not necessarily unique to sexual abuse; they occur
in other kinds of trauma. But the conjunction of these four dynamics in
one set of circumstances are what make the trauma of sexual abuse
unique.…
These dynamics, when present, alter the child's cognitive and
emotional orientation to the world, and create trauma by distorting a
child's self-concept, worldview, and affective capacities. For example,
4
the past 3 decades indicates that a wide range of psychological, health, and interpersonal
problems are more prevalent among those who have been sexually abused in childhood compred
to those who have not.‖24 Pollio, Deblinger, and Runyon add, ―For many decades, researchers
have documented the disruptive effects sexual abuse has on children‘s cognitive, emotional,
social, and behavioral development. Recent research suggests abuse and its adverse effects may
negatively impact brain development as well.‖25
[A] Short-Term Effects of Sexual Abuse
Before describing the short-term effects of sexual abuse, it is important to state that not all
sexually abused children exhibit manifestations of harm or stress.26 For children who are
the dynamic of stigmatization distorts children's sense of their own value
and worth. The dynamic of powerlessness distorts children's sense of
their ability to control their lives.…
Traumatic sexualization refers to a process in which a child's
sexuality (including both sexual feelings and sexual attitudes) is shaped
in a developmentally inappropriate and interpersonally dysfunctional
fashion as a result of the sexual abuse.…
Betrayal refers to the dynamic in which children discover that
someone on whom they are vitally dependent has caused them harm.…
Powerlessness—or what might also be called ―disempowerment,‖
the dynamic of rendering the victim powerless—refers to the process in
which the child's will, desires, and sense of efficacy are continually
contravened.…
Stigmatization, the final dynamic, refers to the negative
connotations—for example, badness, shame, and guilt—that are
communicated to the child about the experiences and that then become
incorporated into the child's self-image.… They can come directly from
the abuser, who may blame the victim for the activity, denigrate the
victim, or, simply through his furtiveness, convey a sense of shame about
the behavior. When there is pressure for secrecy from the offender, this
can also convey powerful messages of shame and guilt. But
stigmatization is also reinforced by attitudes that the victim infers or
hears from other persons in the family or community. (pp. 530-533).
24
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 221 (3d ed.
2011)(Sage).
See John N. Briere & Diana M. Elliott, Immediate and Long-Term Impacts of Child Sexual
Abuse, 4 The Future of Children 54-69, at 54 (1994).
25
Elisabeth Pollio, Esther Deblinger & Melissa K. Runyon, Mental Health Treatment for the
Effects of Child Sexual Abuse. In John E.B. Myers (Ed.), The APSAC Handbook on Child
Maltreatment 267-288 (3d ed. 2011)(Sage).
26
2011)(Sage)(―However, not all children exposed to sexual abuse develop detectable negative
effects.‖); Esther Deblinger, Julie Lippmann, & Robert Steer, Sexually Abused Children
Suffering Post Traumatic Stress Symptoms: Initial Treatment Outcome Findings, 1 Child
5
symptomatic, symptoms vary from child to child.27 With the exception of Posttraumatic Stress
Disorder, aspects of which are seen in approximately half of abused children, there is no
symptom or group of symptoms that is observed in a majority of sexually abused children.28
Generally, the more severe the abuse, the more likely the child will be symptomatic.29 KendallTackett, Williams, and Finkelhor write, ―Molestations that included a close perpetrator; a high
frequency of sexual contact; a long duration; the use of force; and sexual acts that included oral,
anal, or vaginal penetration lead to a greater number of symptoms for victims.‖30
[1] Anxiety
Many sexually abused children experience anxiety-related symptoms.31 Briere and Elliott
write, ―Child abuse is, by its nature, threatening and disruptive, and may interfere with the child's
developing sense of security and belief in a safe, just world. Thus, it should not be surprising that
victims of such maltreatment are prone to chronic feelings of fearfulness or anxiety.‖32
[2] Fear
Perpetrators of sexual abuse often threaten their victims to maintain silence, and many
victims are fearful.33 Berliner writes, ―The sexual abuse experience itself often produces intense
Maltreatment 310-321, at 310 (1996)(―Approximately one third of sexually abused children
demonstrate no apparent symptomatology, and no single symptom or syndrome is characteristic
of the majority of sexually abused children.‖).
27
Esther Deblinger, Julie Lippmann, & Robert Steer, Sexually Abused Children Suffering
Post Traumatic Stress Symptoms: Initial Treatment Outcome Findings, 1 Child Maltreatment
310-321, at 310 (1996); Joshua P. Mersky & James Topitzes, Comparing Early Adult Outcomes
of Maltreated and Non-Maltreated Children: A Prospective Longitudinal Investigation, 32
Children and Youth Services Review 1086-1096, at 1086 (2009)(―Extensive empirical research
has shown that maltreated children often perform poorly relative to their non-maltreated peers on
various indicators of physical, psychological, social-emotional, educational, and behavioral
functioning . . . [F]indings generally indicate that the consequences of child maltreatment persist
into adulthood.‖).
28
Kathleen A. Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact on
Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Findings, 113
Psychological Bulletin 164-180 (1993).
29
30
Psychological Bulletin 164-180, at 171 (1993).
31
2011)(Sage)(―Sexually abused children have more internalized distress than nonabused children.
Some sexually abused children have clinical levels of depression and anxiety, and these
conditions frequently co-occur with PTSD. Sexual abuse is a risk factor for suicidal ideation and
suicide attempts in children.‖)
32
John N. Briere & Diana M. Elliott, Immediate and Long-Term Impacts of Child Sexual
33
For discusion of threats see § 6.04.
6
negative emotions such as fear and shame.‖34
[3] Nightmares and Sleep Problems
Some sexually abused children have nightmares. For some children, the nightmare is a
terrifying reenactment of the abuse. More often, a child has generalized dreams involving
monsters or other frightening events.35
[4] Acting Out
Many sexually abused children are distressed, and their unhappiness can lead to misbehavior
at home and at school.36 The academic performance of abuse victims may suffer.37 Some older
children and adolescents run away,38 abuse drugs or alcohol,39 experience sexual behavior
problems,40 or engage in illegal conduct, including prostitution.41
34
2011)(Sage).
35
Psychological Bulletin 164-180, at 171 (1993); Debra A. Poole & Michele A. Wolfe, Child
Development: Normative Sexual and Nonsexual Behaviors That May Be Confused with
Symptoms of Sexual Abuse. In Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of
Child Sexual Abuse Allegations 101-128 (2009)(Wiley)(sleep problems are not a strong indicator
of sexual abuse).
36
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 224-225 (3d ed.
2011)(Sage); Kathleen A. Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact
on Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Findings, 113
Psychological Bulletin 164-180, at 165 (1993); Elisabeth Pollio, Esther Deblinger & Melissa K.
Runyon, Mental Health Treatment for the Effects of Child Sexual Abuse. In John E.B. Myers
(Ed.), The APSAC Handbook on Child Maltreatment 267-288, at 267 (3d ed. 2011)(Sage)(―It has
been repeatedly found that survivors of sexual abuse are at increased risk for developing
significant mental health disorders including posttraumatic stress disorder (PTSD), major
depression, oppositional and conduct problems, as well as substance abuse disorders.‖).
37
38
Arlene McCormack, Mark-David Janus, & Ann Wolbert Burgess, Runaway Youths and
Sexual Victimization: Gender Differences in an Adolescent Runaway Population, 10 Child Abuse
& Neglect 387-395 (1986).
39
40
Maltreatment 267-288, at 269 (3d ed. 2011)(Sage)(―Survivors of sexual abuse experience a wide
range of difficulties similar to individuals who have experienced other traumas. However, sexual
behavior problems and dysfunctions have been found to be more commonly linked to the trauma
of sexual abuse as compared to other traumas.‖); Cathy S. Widom & M. Ashley Ames, Criminal
Consequences of Childhood Sexual Victimization, 18 Child Abuse & Neglect 303-318 (1994).
7
[5] Withdrawal
While some abused children act out, others withdraw emotionally and socially.42
[6] Regression
A child regresses when the child reverts to an earlier stage of development. For example, a
child who is toilet trained may wet the bed. Sexual abuse sometimes causes regression, and
toileting accidents are one manifestation of regression.43
[7] Encopresis
Encopresis is ―incontinence of feces not due to organic defect or illness.‖44 Encopresis is
more common in boys than girls. A few sexually abused children have encopresis.45
[8] Poor Self-Concept
Many sexually abused children have a poor self-concept.46 Abused children sometimes think
41
Cathy S. Widom & Joseph B. Kuhns, Childhood Victimization and Subsequent Risk for
Promiscuity, Prostitution, and Teenage Pregnancy: A Prospective Study, 86 American Journal of
Public Health 1607-1612 (1996).
42
Dante Cicchetti, Fred A. Rogosch, Megan R. Gunnar & Sheree L. Toth, The Differential
Impacts of Early Physical and Sexual Abuse and Internalizing Problems on Daytime Cortisol
Rhythm in School-Aged Children, 81 Child Development 252-269, at 252 (2010)(―Among the
array of difficulties exhibited by maltreated children, one of the most prevalent and widely
documented is an increased risk for internalizing problems and depression in childhood and major
depressive disorder in adulthood.‖); Kathleen A. Kendall-Tackett, Linda Meyer Williams, &
David Finkelhor, Impact on Sexual Abuse on Children: A Review and Synthesis of Recent
Empirical Findings, 113 Psychological Bulletin 164-180, at 165 (1993).
43
44
Dorland's Illustrated Medical Dictionary 94 (28th ed. 1994)(Saunders).
45
Michael W. Mellon, Stephen P. Whiteside, & William N. Friedrich, The Relevance of
Fecal Soiling as an Indicator of Child Sexual Abuse: A Preliminary Analysis, 27 Journal of
Developmental Behavioral Pediatrics 25-32 (2006) (―classifying a child as abused based on the
presence of occasional soiling is as likely to be incorrect as correct. Therefore, this behavior is not
useful in identifying sexual abuse status in children.‖); Jan Morrow, Catherine A. Yeager, &
Dorothy Otnow Lewis, Encopresis and Sexual Abuse in a Sample of Boys in Residential
Treatment, 21 Child Abuse & Neglect 11-18 (1997); Debra A. Poole & Michele A. Wolfe, Child
Child Sexual Abuse Allegations 101-128, at 117 (2009)(Wiley)(soiling not a useful symptom to
differentiate abused from nonabused children).
46
2011)(Sage).
8
the abuse was their fault, and that they are bad, dirty, worthless, or ―damaged goods.‖47 Berliner
writes, ―Sexually abused children tend to be less socially competent that nonabused children. As a
group, sexually abused children perceive themselves as different from others. Sexually abused
youngsters tend to be less trusting of those in their immediate environment.‖48
[9] Depression
Among sexually abused children and adolescents, depression is common.49 Quite a few
victims think about suicide.50
[10] Developmentally Unusual Sexual Knowledge
Certain kinds of sexual behavior are normal during childhood (e.g., masturbation). Some
young sexual abuse victims demonstrate sexual knowledge one does not expect in a child that
age. Developmentally unusual sexual knowledge is discussed in §§ 6.10[D], 7.4[A], 7.7[C],
47
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 224 (3d. 3d
2011)(Sage); Kathleen A. Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact
on Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Findings, 113
48
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232, at 226 (3d. ed.
2011)(Sage).
49
suicide attempts in children.‖); John N. Briere & Diana M. Elliott, Immediate and Long-Term
Impacts of Child Sexual Abuse, 4 The Future of Children 54-69, at 57 (1994); Dante Cicchetti,
Fred A. Rogosch, Megan R. Gunnar & Sheree L. Toth, The Differential Impacts of Early Physical
and Sexual Abuse and Internalizing Problems on Daytime Cortisol Rhythm in School-Aged
Children, 81 Child Development 252-269, at 252 (2010)(―Among the array of difficulties
exhibited by maltreated children, one of the most prevalent and widely documented is an
increased risk for internalizing problems and depression in childhood and major depressive
disorder in adulthood.‖).
50
suicide attempts in children.‖); Elisabeth Pollio, Esther Deblinger & Melissa K. Runyon, Mental
Health Treatment for the Effects of Child Sexual Abuse. In John E.B. Myers (Ed.), The APSAC
Handbook on Child Maltreatment 267-288, at 267 (3d ed. 2011)(Sage)(―It has been repeatedly
found that survivors of sexual abuse are at increased risk for developing significant mental health
disorders including posttraumatic stress disorder (PTSD), major depression, oppositional and
conduct problems, as well as substance abuse disorders. In addition, there is evidence that
children who have been sexually abused may be at increased risk for suicide, medical difficulties,
and interpersonal problems including revictimization experiences in adolescence or adulthood.‖).
9
7.19[B][12], and 7.19[C][3].
[11] Posttraumatic Stress Disorder
The diagnostic features of Posttraumatic Stress Disorder (PTSD) are discussed in §§ 6.12 and
11.7[A]. Most sexually abused children do not have full-blown PTSD, although many victims
have some posttraumatic symptoms.51 Berliner writes, ―Sexually abused children have high rates
of PTS [post traumatic stress] or PTSD compared to children exposed to nonabuse trauma.‖52
Some young sexually abused children with PTSD repetitively act out the abuse in their play.
Some PTSD sufferers have difficulty sleeping and experience nightmares. Some children have an
intense emotional reaction when they are reminded of the traumatic experience. It is not
surprising that children with PTSD try to avoid people and things that remind them of the abuse.53
Thus, some children with PTSD are reluctant to talk about the abuse.
Some parents of sexually abused children exhibit symptoms of Posttraumatic Stress
Disorder.54 Mothers who themselves were sexually abused as children are particularly likely to be
symptomatic when they learn their child was abused.
[12] Somatic Complaints
Somatic complaints associated with sexual abuse include stomachaches and headaches.55
51
Abuse, 4 The Future of Children 54-69, at 56 (1994); Tristan Milot, Diane St-Laurent, Louise S.
Ethier & Marc A. Provost, Trauma-Related Symptoms in Neglected Preschoolers and Affective
Quality of Mother-Child Communication, 15 Child Maltreatment 293-304, 293 (2010)(―The idea
of considering child maltreatment as a very traumatic experience finds support in several studies
reporting high prevalence of postraumatic stress disorder (PTSD) in physically abused children
and in sexually abused children.‖); Elisabeth Pollio, Esther Deblinger & Melissa K. Runyon,
Mental Health Treatment for the Effects of Child Sexual Abuse. In John E.B. Myers (Ed.), The
APSAC Handbook on Child Maltreatment 267-288, at 267 (3d ed. 2011)(Sage)(―It has been
repeatedly found that survivors of sexual abuse are at increased risk for developing significant
mental health disorders including posttraumatic stress disorder (PTSD), major depression,
oppositional and conduct problems, as well as substance abuse disorders.‖).
52
2011)(Sage).
53
2011)(Sage).
54
Jane Timmons-Mitchell, Dawn Chandler-Holtz, & William E. Semple, Post-Traumatic
Stress Symptoms in Mothers Following Children's Reports of Sexual Abuse: An Exploratory
Study, 66 American Journal of Orthopsychiatry 463-467 (1996).
55
Psychological Bulletin 164-180, 165 (1993); Debra A. Poole & Michele A. Wolfe, Child
Child Sexual Abuse Allegations 101-128 (2009)(Wiley)(―One reason short-lived complaints fail
10
[13] Summary
Child sexual abuse produces an array of short-term psychological symptoms in children.
Symptoms vary from child to child, depending on the kind of abuse, the child's coping style, and
the presence or absence of emotional support. Symptoms may last days, months, or years.
Symptoms may abate temporarily, only to reappear later on.56
[B] Long-Term Effects of Child Sexual Abuse
An extensive literature documents the long-term harm caused by child sexual abuse.57 Many
victims suffer for years, and some never fully recover.58 A high percentage of adult psychiatric
patients were sexually abused during childhood.59 Yet, despite what Salter calls ―footprints on the
heart‖ left by child sexual abuse, most adult survivors lead productive lives.60 Coffey and
colleagues reassure us, ―Childhood sexual abuse does not inevitably lead to adult disorders.‖61
Chandy and colleagues add, ―One of the remarkably positive aspects of populations that are
vulnerable due to a variety of risk factors is that, in spite of their vulnerability, a large majority of
them grow up normally and do well in life.‖62
Adult survivors are at increased risk of a broad range of mental health problems.63 The more
to differentiate between abused and nonabused children is that physical complaints are so
common among children in general.‖ p. 117).
56
The so-called ―sleeper effect.‖
57
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232 (3d ed. 2011)(Sage);
Amy E. Bonomi, et al., Health Care Utilization and Costs Associated with Childhood Abuse, 23
Journal of General Internal Medicine 294-299 (2008)(―Physical and sexual childhood abuse
history in women is prevalent and is associated with poor health across the lifespan.‖ p. 294.
―Women with a history of physical or sexual childhood abuse had higher annual health care use
and costs many years after the abuse.‖ p. 298); Elisabeth Pollio, Esther Deblinger & Melissa K.
Runyon, Mental Health Treatment for the Effects of Child Sexual Abuse. In John E.B. Myers
(Ed.), The APSAC Handbook on Child Maltreatment 267-288 (3d ed. 2011)(Sage); Anna C.
Salter, Transforming Trauma: A Guide to Understanding and Treating Adult Survivors of Child
Sexual Abuse (1995)(Sage).
58
E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 215-232 (3d ed. 2011)(Sage).
59
John Briere & Lisa Zaidi, Sexual Abuse Histories and Sequelae in Female Psychiatric
Emergency Room Patients, 146 American Journal of Psychiatry 1602-1606 (1989).
60
Anna C. Salter, Transforming Trauma: A Guide to Understanding and Treating Adult
Survivors of Child Sexual Abuse (1995)(Sage).
61
Patricia Coffey, Harold Leitenberg, Kris Henning, Tonia Turner, & Robert T. Bennett,
Mediators of the Long-Term Impact of Child Sexual Abuse: Perceived Stigma, Betrayal,
Powerlessness, and Self-Blame, 20 Child Abuse & Neglect 447-455, at 447 (1996).
62
Joseph M. Chandy, Robert Wm. Blum, & Michael D. Resnick, Female Adolescents with a
History of Sexual Abuse: Risk Outcomes and Protective Factors, 11 Journal of Interpersonal
Violence 503-518, at 503 (1996).
63
Paul Rohde, Laura Ichikawa, Gregory E. Simon, Evette J. Ludman, Jennifer A. Linde,
Robert W. Jeffrey & Belinda H. Operskalski, Associations of Child Sexual and Physical Abuse
with Obesity and Depression in Middle-Aged Women, 32 Child Abuse & Neglect 878-887
(2008)(―We found that both child sexual and physical abuse were significantly associated with
higher rates of both obesity and depression.‖ p. 884).
11
severe the abuse, the more likely the victim will experience long-term adjustment problems.
Survivors have increased levels of somatic symptoms, low self-esteem, depression, anxiety
disorders, Posttraumatic Stress Disorder, substance abuse, sexual dysfunction, including high-risk
sexual behavior, conversion reaction, suicidal tendencies, self-mutilation, dissociation, multiple
personality disorder, borderline personality, and eating disorders.64 Childhood sexual abuse is
found in a large percentage of adolescent and adult prostitutes.65 Many runaway teens were
abused at home.66
[C] Psychotherapy for Victims
Sexual abuse has deleterious short- and long-term consequences for many victims.
Fortunately, psychological treatment can alleviate the suffering of many children and adult
survivors.67
64
Dante Cicchetti, Fred A. Rogosch, Megan R. Gunnar & Sheree L. Toth, The Differential
Impacts of Early Physical and Sexual Abuse and Internalizing Problems on Daytime Cortisol
Rhythm in School-Aged Children, 81 Child Development 252-269, at 252 (2010)(―Among the
array of difficulties exhibited by maltreated children, one of the most prevalent and widely
documented is an increased risk for internalizing problems and depression in childhood and major
depressive disorder in adulthood.‖); Joshua P. Mersky & James Topitzes, Comparing Early Adult
Outcomes of Maltreated and Non-Maltreated Children: A Prospective Longitudinal Investigation,
32 Children and Youth Services Review 1086-1096, at 1086 (2009)(―Extensive empirical research
has shown that maltreated children often perform poorly relative to their non-maltreated peers on
various indicators of physical, psychological, social-emotional, educational, and behavioral
functioning . . . [F]indings generally indicate that the consequences of child maltreatment persist
into adulthood.‖); Tristan Milot, Diane St-Laurent, Louise S. Ethier & Marc A. Provost, TraumaRelated Symptoms in Neglected Preschoolers and Affective Quality of Mother-Child
Communication, 15 Child Maltreatment 293-304, 293 (2010)(―The idea of considering child
maltreatment as a very traumatic experience finds support in several studies reporting high
prevalence of postraumatic stress disorder (PTSD) in physically abused children and in sexually
abused children.‖).
65
Cathy S. Widom & M. Ashley Ames, Criminal Consequences of Childhood Sexual
Victimization, 18 Child Abuse & Neglect 303-318 (1994).
66
Arlene McCormack, Mark-David Janus, & Ann Wolbert Burgess, Runaway Youths and
Sexual Victimization: Gender Differences in an Adolescent Runaway Population, 10 Child Abuse
& Neglect 387-395 (1986).
67
Judith A. Cohen, Anthony P. Mannarino, Laura K. Murray & Robyn Igelman, Psychosocial
Interventions for Maltreated and Violence-Exposed Children, 62 Journal of Social Issues 737-766
(2006)(effective treatments exist); Esther Deblinger, Lori B. Stauffer, & Robert A. Steer,
Comparative Efficacies of Supportive and Cognitive Behavioral Group Therapies for Young
Children Who Have Been Sexually Abused and the Nonoffending Mothers, 6 Child Maltreatment
332-343 (2001)(cognitive behavioral therapy helped children and their nonoffending parents);
William B. Friedrich, Psychotherapy with Sexually AbusedBoys (1995)(Sage); Elisabeth Pollio,
Esther Deblinger & Melissa K. Runyon, Mental Health Treatment for the Effects of Child Sexual
Abuse. In John E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 267-288, at 267
(3d ed. 2011)(Sage); Karen J. Saywitz, Anthony P. Mannarino, Lucy Berliner, & Judith A.
Cohen, Treatment for Sexually Abused Children and Adolescents, 55 American Psychologist
1040-1047, at 1047 (2000)(―The available research suggests that abuse-specific [cognitive
behavioral therapies] are probably efficacious for alleviating many of the chief symptoms
displayed by sexually abused children.‖).
12
Mental health professionals differ in their approach to treatment, and there is no single correct
way to treat sexually abused children.68 Research provides increasing support for ―abuse-specific‖
treatment.69 Finkelhor and Berliner describe the common elements of abuse-specific therapy: ―(1)
encouraging expression of abuse-related feelings (e.g., anger, ambivalence, fear), (2) clarifying
erroneous beliefs that might lead to negative attributions about self or others (e.g., self-blame), (3)
teaching abuse prevention skills, and (4) diminishing the sense of stigma and isolation through
reassurance or exposure to other victims (e.g., group therapy).‖70
§6.04 DISCLOSURE OF SEXUAL ABUSE
Many victims of rape and sexual abuse never disclose, and for those who do tell, delayed
disclosure is common.71 There are powerful reasons for delay.72 Many children are threatened
68
Maltreatment 267-288, at 267 (3d ed. 2011)(Sage).
69
70
David Finkelhor & Lucy Berliner, Research on the Treatment of Sexually Abused
Children: A Review and Recommendations, 34 Journal of the American Academy of Child and
Adolescent Psychiatry 1408-1423, at 1418-1419 (1995).
71
Cynthia DeLago, Esther Deblinger, Christine Schroeder & Martin A. Finkel, Girls Who
Disclose Sexual Abuse: Urogenital Symptoms and Signs After Genital Contact, 122 Pediatrics
e281-e286 (2008)(―Similar to others, we observed that girls frequently wait to disclose
inappropriate sexual experiences.…‖ p. e285); Irit Hershkowitz, Yael Orbach, Michael E. Lamb,
Kathleen J. Sternberg, & Dvora Horowitz, Dynamics of Forensic Interviews with Suspected
Abuse Victims Who Do Not Disclose, 30 Child Abuse & Neglect 753-769, at 754 (2006)(―there is
consensus that many abuse victims cannot be protected or helped because they never disclose
their experience or do so belatedly.‖); Kamala London, Maggie Bruck, Stephen J. Ceci, & Daniel
W. Shuman, Disclosure of Child Sexual Abuse: A Review of the Contemporary Empirical
Literature. In Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg
(Eds.), Child Sexual Abuse: Disclosure, Delay and Denial 11-40 (2007)(Mahwah, NJ: Lawrence
Erlbaum)(―we conclude that although a substantial proportion of children delay reporting or
altogether fail to report incidents of child sexual abuse (the secrecy stage), there is little evidence
to suggest that denials, recantations, and redisclosures are typical when abused children are
directly asked about abuse during forensic interviews.‖ pp. 12-13. ―nondisclosure of sexual abuse
(silence) in childhood is very common.‖ p. 16. ―among children who do disclose during
childhood, delay of disclosure is common.‖ p. 16. ―when children do disclose, it often takes a
long time to do so.‖ p. 20.); Kamala London, Maggie Bruck, Stephen J. Ceci, & Daniel W.
Shuman, Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways
that Children Tell?, 11 Psychology, Public Policy, and Law 194 (2005); Kamala London, Maggie
Bruck, D.B. Wright & Stephen J. Ceci, Review of the Contemporary Literature on How Children
Report Sexual Abuse to Others: Findings, Methodological Issues, and Implications for Forensic
Interviewers, 16 Memory 29-47 (2008); Thomas D. Lyon, Abuse Disclosure: What Adults Can
Tell. In Bette L. Bottoms, Gail S. Goodman & C.J. Najdowski (Eds.), Child Victims, Child
Offenders: Psychology and Law ____ (2009)(Guilford)(―there is general agreement among
researchers that large percentage of adults sexually victimized as children never disclose the
abuse to anyone during their childhood.‖); Thomas D. Lyon, False Denials: Overcoming
Methodological Biases in Abuse Disclosure Research. In Margaret-Ellen Pipe, Michael E. Lamb,
13
Yael Orbach & Ann-Christin Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay & Denial
41-62 (2007)(Mahwah, NJ: Lawrence Erlbaum)(―review of the research on gonorrhea in children
reveals that false denials are quite common.…‖ p. 43. ―Consistent with child sexual abuse
accommodation, the authors of these reports frequently emphasized the difficulty interviewers
had in eliciting disclosures and that children had in disclosing abuse.‖ p. 52. ―I have argued in this
chapter that nondisclosure of sexual abuse among truly abused children is a real and serious
phenomenon.‖ p. 57); Thomas D. Lyon & Elizabeth C. Ahern, Disclosure of Child Sexual Abuse:
Implications for Interviewing. In John E.B. Myers (Ed.), The APSAC Handbook on Child
Maltreatment 233-252, at 235 (3d ed. 2011)(Sage)(―There is consensus among researchers who
survey representative groups of adults about their childhood sexual experiences that ‗failure to
disclose is common among sexually abused children.‘ Delayed disclosures are frequent, and a
large percentage of adults across studies report never having told anyone about their abuse prior
to the survey.‖); Erna Olafson & Cindy S. Lederman, The State of the Debate About Children's
Disclosure Patterns in Child Sexual Abuse Cases, 57 Juvenile and Family Court Journal 27-40
(2006)(delayed disclosure is common); Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach &
Ann-Christin Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay & Denial
(2007)(Mahwah, NJ: Lawrence Erlbaum); Margaret-Ellen Pipe, Yael Orbach, Michael E. Lamb,
& Ann-Christin Cederborg, Seeking Resolution in the Disclosure Wars: An Overview. In
Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg (Eds.), Child
Sexual Abuse: Disclosure, Delay and Denial 3-10, at 6 (2007)(Mahwah, NJ: Lawrence
Erlbaum)(―delayed disclosures of sexual abuse are not uncommon.‖); Paul Wagland & Kay
Bussey, Factors that Facilitate and Undermine Children's Beliefs About Truth Telling, 29 Law
and Human Behavior 639-655, 640 (2005)(―laboratory studies confirm that children are
frequently reluctant to disclose an adult's transgressions.‖)
72
Ann-Christin Cederborg, Michael E. Lamb, & Ola Laurell, Delay of Disclosure,
Minimization, and Denial When the Evidence Is Unambiguous: A Multivictim Case. In Margaret
Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay and Denial (2007)(Mahwah, NJ: Lawrence Erlbaum)(―although most alleged
victims reveal that they have been abused within a first or second interview, many children do
not. We do not know, however, why some children are reluctant to tell of their experiences,
perhaps even denying that something has happened to them.… [W]e studied a Swedish case in
which a pedophile had videotaped his abuse of twelve different children. A previous analysis of
this case described a significant tendency among these children to deny and minimize their
experiences.… [T]he police investigation identified 116 different videotaped incidents of abuse
involving the ten children in this study. No child had disclosed abuse before the police
investigation.… Even when reports are delayed or inconsistent, furthermore, we should not
consider them to be unreliable. Our findings show that children can have different reasons for not
specifically reporting their experiences and it is important that interviewers recognize that they
cannot expect children to disclose when they are not mature enough to understand what they
experienced or when the incidents were innocuous and not especially memorable. Children may
also minimize, delay disclosure or deny abuse when they are in a secrecy pact with the
perpetrator, when they feel responsible for participating or fear punishment by the perpetrator if
they tell about their experiences. They may also fear not being believed by their parents.‖);
Jennifer J. Freyd, Frank W. Putnam, Thomas D. Lyon, Kathryn A. Becker-Blease, Ross E. Cheit,
Nancy B. Siegel, & Kathy Pezdek, The Science of Child Sexual Abuse, 308 Science 501 (22
April 2005)(―Most CSA is committed by family members and individuals close to the child,
which increases the likelihood of delayed disclosure, unsupportive reactions by caretakers and
lack of intervention, and possible memory failure.‖).
See Smith v. State, 119 P.3d 411 (Wyo. 2005).
14
into silence.73 Some children are too embarrassed to tell.74 Very young children may not
comprehend the impropriety of sexual touching and see no reason to disclose.75 It comes as no
surprise that many children find it difficult to disclose abuse by a parent or other loved one.76
73
United States v. Johnson, 519 F.3d 816 (8th Cir. 2008)(threat to kill); United States v.
Kenyon, 481 F.3d 1054 (8th Cir. 2007); Commonwealth v. Patton, 458 Mass. 119, 934 N.E.2d
236, 241 (2010)(4-year-old victim; ―He said he would beat her up if she told anyone.‖);
Commonwealth v. Aviles, 77 Mass. App. 389, 931 N.E.2d 500, 503 (2010)(―Marie was crying,
and the defendant told her not to reveal the rape to anyone and threatened to hurt her mother if
she did so.‖); Commonwealth v. Starkus, 69 Mass. App. 326, 867 N.E.2d 811 (2007)(defendant
threatened to kill child); Dubose v. State, 22 So.3d 340 (Miss. Ct. App. 2009)(threat to kill); State
v. Thomas, 290 S.W.3d 129, 132 (Mo. Ct. App. 2009)(―He later began telling M.M. that he
would kill her mother, her sisters or her friend if M.M. said anything about what was
happening.‖); State v. Giddens, 681 S.E.2d 504 (N. C. Ct. App. 2009)(―Defendant told J.B. that if
he told anyone what happened, Defendant would kill Amanda.‖); State v. Streater, 678 S.E.2d
367 (N.C. Ct. App. 2009)(4-year-old; defendant threatened to ―ground‖ her if she disclosed); In re
C.C., 2005 WL 2388262 (Ohio Ct. App. 2005)(not reported)(victim would be shot if abuse
disclosed); Commonwealth v. Loner, 836 A.2d 125 (Pa. Super. Ct. 2003); DeLeon v. State, 322
S.W.3d 375 (Tex. Ct. App. 2010)(―One day I‘ll get you good.‖).
74
Gail S. Goodman, Jodi A. Quas & Christin M. Ogle, Child Maltreatment and Memory, 61
Annual Review of Psychology 26.1-26.27, at 26.6 (2009)(―maltreated children‘s expectations that
others will react unsupportively may reduce their willingness to disclose information in an
interview, especially information that is troubling.‖); Irit Hershkowitz, Omer Lanes, & Michael
E. Lamb, Exploring the Disclosure of Child Sexual Abuse with Alleged Victims and Their
Parents, 31 Child Abuse & Neglect 111-123 (2007)(the authors studied disclosure in extrafamilial
cases: ―Unexpectedly, the older children were more reluctant to disclose and tended to postpone
disclosure. Contrary to previous reports, the 7- to 9-year-old children in our study were much
more likely to disclose promptly than the 10- to 12-year-olds, possibly because the older children
were more aware of social norms and taboos, or because they were embarrassed or ashamed of
not preventing the abuse.… Older children also tended to avoid sharing their experiences with
their parents whereas younger children preferentially disclosed to their parents rather than to
siblings or friends.‖ p. 120.).
See State v. Blakeman, 688 S.E.2d 525 (N.C. Ct. App. 2010)(victim ―feared that disclosure of
Defendant's behavior would ‗ruin‘ her family.‖).
75
Ann-Christin Cederborg, Michael E. Lamb, & Ola Laurell, Delay of Disclosure,
Minimization, and Denial When the Evidence Is Unambiguous: A Multivictim Case. In Margaret
Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay and Denial (2007)(Mahwah, NJ: Lawrence Erlbaum)(―[W]e studied a Swedish
case in which a pedophile had videotaped his abuse of twelve different children. A previous
analysis of this case described a significant tendency among these children to deny and minimize
their experiences.… [T]he police investigation identified 116 different videotaped incidents of
abuse involving the ten children in this study. No child had disclosed abuse before the police
investigation.… Even when reports are delayed or inconsistent, furthermore, we should not
consider them to be unreliable. Our findings show that children can have different reasons for not
specifically reporting their experiences and it is important that interviewers recognize that they
cannot expect children to disclose when they are not mature enough to understand what they
experienced or when the incidents were innocuous and not especially memorable.‖).
76
Irit Hershkowitz, Dvora Horowitz, & Michael E. Lamb, Individual and Family Variables
Associated with Disclosure and Nondisclosure of Child Abuse in Israel. In Margaret-Ellen Pipe,
Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay and Denial 11-39 (2007)(Mahwah, NJ: Lawrence Erlbaum)(―The likelihood
15
Brilleslijper-Kater, Friedrich, and Corwin offer insights into the disclosure process for
preschoolers: ―Preschoolers' difficulties with disclosure reflect not only their verbal limitations
but also the difficulties attendant to disclosure of a shameful or poorly understood experience that
was accompanied by threats or confusing statements, for example, ―it's a game,‖ made to the
child. The process of victimization is also often gradual, and only progressively becomes sexual.
Once the child realizes that abuse is taking place he or she may believe their cooperation is
tantamount to giving consent, and the stage is set for the child feeling guilty. Egocentric thought
contributes to the feelings of guilt.… [Y]oung children think that they are the center of what
happens to them and they are the cause of everything.‖ 77
The impediments to disclosure described above (e.g., threats, embarrassment) apply as much
to teenageers as to young children.78 In a study of teenage victims, Crisma and colleagues report
that most of the teens did not tell their parents.79 Some teens were afraid they would be blamed
and would get in trouble. Other teens said they did not want to burden their parents. ―A quarter of
the adolescents said they did not disclose because they wished to protect their parents from the
possible negative consequences of such a revelation.‖80
that children would make allegations when interviewed also varied dramatically depending on the
relationship between the children and the suspects.… [C]hildren were much more likely to make
allegations when the suspect was not a parent or parent figure.‖ pp. 70-71. ―[I]n the case of both
physical and sexual abuse, children were extremely unwilling to accuse their parents or parent
figures.‖ p. 72); Kamala London, Maggie Bruck, Stephen J. Ceci, & Daniel W. Shuman,
Disclosure of Child Sexual Abuse: A Review of the Contemporary Empirical Literature. In
Erlbaum)(―at least when there is an association between disclosure and relationship to
perpetrator, close relationships lead to decreased disclosure.… The retrospective data are
insufficient at this time, then, to conclude whether there is a consistent association between
relationship to perpetrator and childhood disclosure of sexual abuse.‖); Thomas D. Lyon &
Elizabeth C. Ahern, Disclosure of Child Sexual Abuse: Implications for Interviewing. In John
2011)(Sage)(―The research supports the proposition that child sexual abuse victims often delay
disclosure or fail altogether to disclose abuse, and that delays and non-disclosure are most
common among children abused by a familiar person, especially a family member living in the
child‘s household.‖); Lindsay Malloy, Thomas D. Lyon, & Jodi A. Quas, Filial Dependency and
Recantation of Child Sexual Abuse Allegations, 46 Journal of the American Academy of Child
and Adolescent Psychiatry 162-170 (2007)(―children delay reporting longer when they are abused
by a close relative.‖).
77
Challenges, 28 Child Abuse & Neglect 1007-1017, at 1008 (2004).
78
Micaela Crisma, Elisabetta Bascelli, Daniela Paci, & Patrizia Romito, Adolescents Who
Experienced Sexual Abuse: Fears, Needs and Impediments to Disclosure, 28 Child Abuse &
Neglect 1035-1048 (2004).
79
Neglect 1035-1048 (2004).
80
Neglect 1035-1048, at 1042 (2004).
16
During forensic interviews, older children are more likely to disclose than younger children.81
Many abused children disclose gradually, and each telling is a little different.82 The child may
reveal additional details over time.83 Children disclosing abuse display the full range of emotion,
from crying to lack of emotionality.84
Most children who are taken for a formal forensic interview already disclosed (e.g., to a
friend,85 teacher,86 parent,87 foster parent,88 nurse, doctor). A minority of children—particularly
81
Irit Hershkowitz, Dvora Horowitz, & Michael E. Lamb, Individual and Family Variables
Associated with Disclosure and Nondisclosure of Child Abuse in Israel. In Margaret-Ellen Pipe,
Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay and Denial 11-39 (2007)(Mahwah, NJ: Lawrence Erlbaum)(―Even more
impressive than the gender differences were the differences by age (p<.0001). More than half
(52.4%) of the 3- to 6-year-olds interviewed made no allegation, compared with nearly a third
(32.9%) of the 7- to 10-year-olds, and about a quarter (26.4%) of the 11- to 14-year-olds.‖ p. 67);
Margaret-Ellen Pipe, Yael Orbach, Kathleen J. Sternberg, Michael E. Lamb, Heather L. Stewart,
& Phillip W. Esplin, Factors Associated with Nondisclosure of Suspected Abuse During Forensic
Interviews. In Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin Cederborg
(Eds.), Child Sexual Abuse: Disclosure, Delay and Denial 77-96 (2007) (Mahwah, NJ: Lawrence
Erlbaum)(―There is consistent evidence that variables such as age, prior disclosure, and
independent validation of abuse affect reported disclosure rates. When respect to age, a
developmental increase in disclosure rate (and, conversely, higher rates of non disclosure for
younger than for older children) appears to be reliable.‖ p. 78. In this study, ―age was an
important variable, and disclosure rates were highest for the oldest children.‖ p. 92).
82
Erna Olafson & Cindy S. Lederman, The State of the Debate About Children's Disclosure
Patterns in Child Sexual Abuse Cases, 57 Juvenile and Family Court Journal 27-40, at 30 (2006)
(―when questioned during formal interviews, children may only partially disclose during the
initial interview‖).
See State v. Sprinkle, 122 S.W.3d 652 (Mo. Ct. App. 2003).
83
Challenges, 28 Child Abuse & Neglect 1007-1017, at 1008 (2004).
84
Liat Sayfan, Emilie B. Mitchell, Gail S. Goodman, Mitchell I. Eisen & Jianjian Qin,
Children's Expressed Emotions When Disclosing Maltreatment, 32 Child Abuse & Neglect 10261036 (2008)(researchers studied forensic interviews of 124 children ranging from 3- to 16-yearsof-age and examined the children's emotions when disclosing abuse; ―This study examined the
characteristics of maltreated children's emotional display at time of disclosure of abuse incidents,
as well as the unique predictors of these children's negative affect. It is generally expected that
during their disclosures, child victims will be highly distressed, cry, and show other negative
emotional reactions. This expected pattern of reaction seems to make their story more credible to
jurors. However, our findings cast doubt on the validity of these expectations. Consistent with
prior research, our study showed that most of the children displayed neutral affect when they
discussed abuse incidents, and most of them did not cry.‖ p. 1034).
85
Disclosure to a friend is quite common. State v. Favoccia, 119 Conn. App. 1, 986 A.2d
1081, 1085 (2010)(―The victim thereafter did not report that incident to her parents. She did,
however, inform two classmates and close friends . . . .‖).
86
In re S.A., 182 Cal. App. 4th 1128, 106 Cal. Rptr. 3d 382 (2010); People v. Gregory, 910
N.Y.S.2d 295 (A.D. 2010)(child disclosed after attending good touch/bad touch presentation at
school).
17
preschool children—are forensically interviewed not because they disclosed but because of
changes in their behavior, discovery of medical evidence (e.g., sexually transmitted infection), or
other factors that raise suspicions of abuse. Children who disclosed prior to a forensic interview
are likely to repeat the disclosure during the interview.89 On the other hand, quite a few children
who do not disclose prior to the interview do not disclose during the interview. Lyon observes,
―Disclosure rates routinely run less than 50% among children whose abuse is first suspected
through external evidence of abuse (e.g., gonorrhea).… If a child who has not previously
disclosed abuse denies abuse when first questioned, one cannot say with confidence that
suspicions of abuse are unfounded. A subsequent disclosure must be taken seriously, and not
simply dismissed as the product of suggestion or coercion. On the other hand, it is neither
necessary nor wise to ask highly leading questions in order to elicit reports of abuse from the
children seen for evaluation, because most children have previously disclosed and are likely to
disclose again. Indeed, it is doubtful whether highly leading questions are ever justified, because
they both risk creating false allegations and tainting true allegations.‖90
During forensic interviews, some children deny abuse when directly asked about it.91 A
denial of abuse is evidence of non-abuse.92 Yet, some children who are abused deny when asked,
making denial difficult to interpret.93 Lyon addresses the conundrum: ―[A] large percentage of
sexually abused children do not disclose abuse, even when questioned. . . . Because rates of
denial [among sexually abused children] are substantially higher than zero, denial is neither
conclusive nor particularly compelling evidence that a child was not abused. This does not mean
that a child's denial is irrelevant. As long as non-abused children are more likely to deny abuse
than abused children, a denial of abuse is some evidence that abuse did not occur. But to the
87
State v. Favoccia, 119 Conn. App. 1, 986 A.2d 1081, 1085 (2010); Girardot v. United
States, 996 A.2d 341, 345 (D.C. 2010)(―C.N. tearfully informed her parents‖); State v. Brim, 789
N.W.2d 80 (S.D. 2010)(―S.G. informed his other than Brim had sexually abused him . . . .‖).
88
Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341 (2000)(foster parent); State v.
Jessica Jane M., 700 S.E.2d 302 (W. Va. 2010)(foster parent).
89
Tonya Lippert, Theodore P. Cross, Lisa Jones & Wendy Walsh, Telling Interviewers About
Sexual Abuse: Predictors of Child Disclosure at Forensic Interviews, 14 Child Maltreatment 100113 (2009)(study of 987 cases of suspected child sexual abuse to evaluate characteristics that
predict full disclosure during interviews; ―The finding that children who disclosed prior to the
forensic interview more often disclosed at the forensic interview than did children who had made
no disclosure prior to the interview also replicated results of previous research.‖ p. 110).
90
Thomas D. Lyon, Abuse Disclosure: What Adults Can Tell. In Bette L. Bottoms, Gail S.
Goodman & C.J. Najdowski (Eds.), Child Victims, Child Offenders: Psychology and Law
(2009)(Guilford).
91
Lina Leander, Police Interviews with Child Sexual Abuse Victims: Patterns of Reporting,
Avoidance and Denial, 34 Child Abuse & Neglect 192-205 (2010); Thomas D. Lyon, False
Denials: Overcoming Methodological Biases in Abuse Disclosure Research. In Margaret-Ellen
Pipe, Michael E. Lamb, Yael Orbach & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay and Denial 11-39, at 54, 57-58 (2007)(Mahwah, NJ: Lawrence Erlbaum).
92
Thomas D. Lyon, False Denials: Overcoming Methodological Biases in Abuse Disclosure
Research. In Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, 660 N.W.2d 619 & AnnChristin Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay and Denial 11-39, at 54, 57-58
(2007) (Mahwah, NJ: Lawrence Erlbaum).
93
18
extent that denial rates are surprisingly high [among abused children], an expert can justifiably
testify that denials are surprisingly weak evidence against abuse.‖94
§ 6.05 RECANTATION
Some children who disclose abuse recant.95 Some recant their recantation.96 Some
recantations are true because the child was not abused.97 Other recantations are false because the
child was abused but the child changed the story, perhaps bowing to pressure.98 There is no foolproof way to distinguish true from false recantations.99 Recantation creates an issue of credibility
for the trier of fact.100
94
95
Thomas D. Lyon, Scientific Support for Expert Testimony on Child Sexual Abuse
Accommodation. In Jon R. Conte (Ed.), Critical Issues in Child Sexual Abuse: Historical, Legal,
and Psychological Perspectives 107-138 (2002)(Thousand Oaks, Cal.: Sage).
96
and Psychological Perspectives 107-138, at 130 (2002)(Thousand Oaks, Cal.: Sage).
97
98
99
There is debate about the rate of recantation. See Kamala London, Maggie Bruck, Stephen
J. Ceci, & Daniel W. Shuman, Disclosure of Child Sexual Abuse: A Review of the Contemporary
Empirical Literature. In Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, & Ann-Christin
Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay and Denial 11-39 (2007)(Mahwah, NJ:
Lawrence Erlbaum); Thomas D. Lyon, False Denials: Overcoming Methodological Biases in
Abuse Disclosure Research. In Margaret-Ellen Pipe, Michael E. Lamb, Yael Orbach, & AnnChristin Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay and Denial 41-62 (2007)
(Mahwah, NJ: Lawrence Erlbaum).
One oft-quoted study of recantation is Tina Sorensen & Barbara Snow, How Children Tell:
The Process of Disclosure of Child Sexual Abuse, 70 Child Welfare 3-15 (1991). Sorensen and
Snow reported a relatively high rate of recantation. Sorensen and Snow's study has been subjected
to criticism. See Kamala London, Maggie Bruck, Stephen J. Ceci, & Daniel W. Shuman,
Disclosure of Child Sexual Abuse: A Review of the Contemporary Empirical Literature. In
Erlbaum)(―Given the nature of the ‗validated‘ cases in the Sorenson and Snow sample, as well as
their use of apparently biased and suggestive interviewing/therapeutic techniques, the results of
the study are uninterpretable.‖).
100
In re Lindsey BB., 70 A.D.3d 1205, 896 N.Y.S.2d 186, 188 n.1 (2010)(neglect case; ―The
children recanted a number of their allegations in their sworn testimony, but that created a
credibility issue for Family Court to resolve.‖).
19
Obviously, recantation raises doubts about the initial disclosure.101 On the other hand, quite a
few abused children recant. Lyon writes, ―[R]ecantation rates are quite high among cases one can
confidently say are true. Indeed, the rates of recantation among cases with corroborative evidence
are among the highest across the studies.‖102 Malloy, Lyon, and Quas studied 250 substantiated
cases of child sexual abuse and found that almost a quarter of the children recanted at some
point.103
§6.06 FABRICATED ALLEGATIONS OF SEXUAL
ABUSE
The individual accused of sexual abuse may assert that the allegations were fabricated by the
child or by an adult with a motive to harm the accused.104 It is not uncommon for an accused to
assert that a child fabricated accusations after the accused disciplined the child.105
[A] False, Unsubstantiated, Fabricated, and Misperceived
Reports of Sexual Abuse
It is useful to define the terms ―false,‖ ―fabricated,‖ ―unfounded,‖ ―unsubstantiated,‖ and
―misperceived.‖ Unfortunately, there is no universally agreed upon meaning of these terms, and
lack of definitional consensus causes confusion. In this treatise the term ―false report‖ is avoided
because ―false‖ is ambiguous.106 Is a false report a deliberate lie? Is it a good-faith report that
In re Fatima M., 16 A.D.3d 263, 793 N.Y.S.2d 329, 336 (2005) (―While recantation is not
uncommon in cases involving intrafamily sexual abuse, it puts the credibility of the accuser at
issue. In addition, the fact that Aquellah made allegations that she had been abused by several
different people also raises a question as to whether her allegations were truthful.‖).
102
Accommodation. In Jon. R. Conte (Ed.), Critical Issues in Child Sexual Abuse: Historical, Legal,
and Psychological Perspectives 107-138, at 130 (2002)(Sage).
103
L.C. Malloy, Thomas D. Lyon & Jodi A. Quas, Filial Dependency and Recantation of
Child Sexual Abuse Allegations, 46 Journal of the American Academy of Child and Adolescent
Psychiatry 162-170 (2007).
104
People v. Foss, 155 Cal. App. 4th 113, 128, 65 Cal. Rptr. 3d 790 (2007)(defendant
accused of molesting child he raised sought to offer evidence that a non-victim woman who
herself had been molested as a child had a morbid fear of sexual matters that prompted her to
convince the victim to manufacture the allegations against defendant; ―Just as the testimony of
victims of sexual crimes is no longer deemed inherently suspect, we conclude the testimony of a
non-complaining witness in a sex crime case who may have been a victim herself of unwanted
sexual attentions or advances, likewise should not be inherently distrusted.‖); State v. Richardson,
210 Wis. 2d 694, 563 N.W.2d 899 (1997) (defendant sought to offer evidence that he was framed
with allegations of sexual abuse; the court holds that frame-up evidence can be relevant; in this
case, the trial court did not err in excluding the frame-up evidence, which was marginally
relevant).
105
State v. Romero, 269 Conn. 481, 849 A.2d 760 (2004)(defendant argued that victim's
parent fabricated the allegations); State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).
106
R. Kim Oates, David P.H. Jones, David Denson, Andrew Sirotnak, Nancy Gray, &
Richard D. Krugman, Erroneous Concerns About Child Sexual Abuse, 24 Child Abuse & Neglect
149-157, at 154 (2000)(―The term false allegation seems to us pejorative and potentially very
misleading. It is variously taken to include the variety of concerns which present for
investigation, as well as the false positives and negatives among those concerns, which are finally
101
20
turns out to be wrong? Sink observes, ―The broadly defined category of ‗false allegations‘
includes almost any situation in which an abuse report cannot be substantiated. The term fails to
differentiate situations of intentional falsification from situations of misunderstanding or
situations where inadequate information is available to determine the true or false nature of a
report.‖107
A ―fabricated report‖ is an intentionally untrue report of abuse, a deliberate lie. A fabricated
report may be made by a child or by an adult. Most deliberate fabrications come from adults and
adolescents, not young children.108
The words ―unfounded‖ and ―unsubstantiated‖ are used extensively in writing about child
abuse. In the present discussion, ―unfounded‖ and ―unsubstantiated‖ are treated as synonyms. An
unsubstantiated report of abuse occurs when a report is made to child protective services or the
police, an investigation occurs, but no determination is reached. Every year, the majority of
reports are unsubstantiated. In some cases, a report is unsubstantiated because the investigation is
inadequate. In other cases the investigation is adequate, but there is not enough evidence to reach
a conclusion. Perhaps the child is too young to describe what happened, or witnesses move away
or refuse to cooperate. In the final analysis, some unsubstantiated reports are undoubtedly
fabricated. It is probable, however, that most unsubstantiated reports are made in good faith,
whether or not they are accurate.
It is a mistake to equate unsubstantiated reports with fabrications. Most unsubstantiated
reports are not lies, and equating unsubstantiated with fabricated leads to the erroneous
conclusion that a substantial portion of reports are lies. This error fuels unwarranted skepticism
about reports of abuse and about children's credibility.
In an undetermined number of cases, parents operating in good faith misperceive information
about their child, leading to suspicion of sexual abuse where none exists. The likelihood of
misperception is particularly high among estranged, separated, or divorced parents who are
predisposed to assume the worst about each other. Consider, for example, a divorced couple who
waged a bitter custody battle for their three-year-old daughter. Eventually, mother won custody
and father received visitation. One Sunday afternoon, father returned the child to mother's home
following a weekend visit. While giving her daughter a bath, mother noticed that the little girl's
genital area was irritated. Mother said, ―How did you get all red in your private parts?‖ The child
responded, ―Owie. Daddy finger.‖ Alarmed, mother suspects sexual abuse. In fact, however, there
was no abuse. A day earlier, on Saturday, the child said, ―Daddy, my privates hurt.‖ Father used
determined to be or not be cases of child sexual abuse.‖); Nico Trocme & Nicholas Bala, False
Allegations of Abuse and Neglect When Parents Separate, 29 Child Abuse & Neglect 1333-1345
(2005)(―Unsubstantiated investigations must, however, be distinguished from intentionally false
ones. Most unsubstantiated investigations are the result of well-intentioned reports triggered by a
suspicious injury or concerning behavior or a misunderstood story.… It is also important to
distinguish allegations that are clearly unsubstantiated or false, from those where abuse cannot be
substantiated but remains suspected. Because many jurisdictions and studies do not distinguish
between suspected, unsubstantiated and intentionally false allegations, confusion in the
interpretation of investigation statistics is understandable.‖ p. 1335).
107
Frances Sink, Studies of True and False Allegations: A Critical Review. In E. Bruce
Nicholson & Josephine Bulkley (Eds.), Sexual Abuse Allegations in Custody and Visitation
Cases, pp. 37-47, at 38 (1988)(Washington, D.C.: American Bar Association, National Legal
Resource Center for Child Advocacy and Protection (now ABA Center on Children and the
Law)).
108
David P.H. Jones & C. Melbourne McGraw, Reliable and Fictitious Accounts of Sexual
Abuse to Children, 2 Journal of Interpersonal Violence 27-45 (1986).
21
his finger to apply soothing ointment. If mother files a report of suspected abuse, she will be
acting in good faith. Her report is not fabricated. She should not be branded a ―false accuser.‖109
In sum, there are important differences between fabricated, unsubstantiated, and
misperception reports of abuse. A fabricated report is a lie, whereas a misperception report is a
mistake. Most unsubstantiated reports are made in good faith. Of course, from the point of view
of the accused, a report is a report. Being incorrectly accused of child sexual abuse is horrible. If
we combine fabricated, unsubstantiated, and misperception reports, the rate of incorrect reports is
substantial.110 The lesson is clear: Do not jump to conclusions about abuse. Thorough
investigation is required to sort wheat from chaff.
[B] Empirical Research on Fabricated Allegations of Abuse
Despite the importance of the subject, little empirical research exists on fabricated allegations
of child sexual abuse.111 The paucity of research is explained largely by the difficulty of studying
109
John E.B. Myers, A Mother's Nightmare: Incest: A Practical Legal Guide for Parents and
Professionals (1997)(Thousand Oaks, Cal.: Sage).
110
Debra A. Poole & D. Stephen Lindsay, Assessing the Accuracy of Young Children's
Reports: Lessons from the Investigation of Child Sexual Abuse, 7 Applied & Preventive
Psychology 1-26 (1998)(―For many years, it was frequently claimed that about 5%-8% of sexual
abuse allegations were false.… This estimate of the false allegation rate is misleadingly low
because of the practice of counting only intentionally false allegations.… When these other
mechanisms were included (e.g., honest misunderstanding of children's statements or problems
caused by reliance on presumed indicators of abuse followed by suggestive interviewing), rate of
false allegations rose considerably (e.g., from 6% to 23% in Jones and McGraw, 1987 [David
P.H. Jones & J. Melbourne McGraw, Reliable and Fictitious Accounts of Sexual Abuse to
Children, 2 Journal of Interpersonal Violence 27-45 (1987)]; from 8.8% to 35% in Faller, 1991
[Kathleen C. Faller, Possible Explanations for Child Sexual Abuse Allegations in Divorce, 61
American Journal of Orthopsychiatry 86-91 (1991)]‖).
111
Nico Trocme & Nicholas Bala, False Allegations of Abuse and Neglect When Parents
Separate, 29 Child Abuse & Neglect 1333-1345 (2005)(This study from Canada is the first
nationwide study of intentionally fabricated accusations of abuse. The authors evaluated 7,600
child welfare cases from across Canada. ―There is a widespread misperception that there is a high
incidence of intentionally false allegations of child abuse made by mothers in the context of
parental separation and divorce in order to gain a tactical advantage or to seek revenge from their
estranged partners.‖ p. 1334. ―The rate of intentionally false allegations is relatively low, though
it is somewhat higher in cases of parental separation than in other contexts. It is more likely a
noncustodial parent (usually the father) will deliberately fabricate an allegation of abuse than for
custodial parents (usually mothers) to fabricate such an allegation.‖ p. 1334. ―No false allegations
of sexual abuse were made by children in the study sample.…‖ p. 1341. ―Rates of substantiation
were significantly lower in cases involving separated parents who were engaged in a custody or
access dispute (40%) compared to cases where no dispute was noted (47%). Conversely, rates of
false allegations were significantly higher in these cases: 12% in cases involving custody or
access disputes compared to only 3% in other cases. A custody or access dispute was noted in
over a third (199 out of 308 cases) of all cases judged to be intentionally false allegations. The
CIS-98 [1998 Canadian Incidence Study of Reported Child Abuse and Neglect] documented only
two intentionally false allegations made against noncustodial fathers.‖ p. 1341. ―Custodial
parents (14%) and children (2%) were responsible for relatively few intentionally false
allegations in cases arising in a context in which there was an ongoing dispute over custody or
access. This indicates that the problem of deliberate fabrication by noncustodial parents (largely
22
the subject. How does one design an experiment to evaluate deliberate lies about sexual abuse?
Existing research supports several tentative conclusions. Fabricated allegations of sexual
abuse are uncommon.112 Fabricated reports are more likely to come from adults and adolescents
than young children.113 Deliberately untrue allegations are more common in contested custody
fathers) is more prevalent than deliberate fabrications of abuse by custodial parents (largely
mothers) and their children.‖ p. 1341. ―The 4% rate of intentionally false allegations documented
in the CIS-98 falls well within the range documented in previous studies of investigated child
abuse or neglect. Within the subsample of cases involving custody and access disputes, the rate of
intentionally false allegations is higher, 12%, but also falls within the range documented in
studies of custody disputes involving allegations of abuse. Findings from the CIS-98 add to this
literature in two important ways. First, this is the first large-sample national study to examine
intentionally false allegations. Second, it examines a broader array of characteristics associated
with intentionally false allegations. The latter reveals a number of surprising findings: (a)
intentionally false allegations of child neglect are far more common than intentionally false
allegations of abuse; (b) when parents have separated, noncustodial parents (usually fathers) are
more likely to make intentionally false allegations than are custodial parents (usually mothers);
and (c) the largest source of intentionally false allegations is through neighbors, relatives, and
acquaintances, though anonymous sources are also a significant source of intentionally false
allegations. The results also confirm that children are very rarely the source of intentionally false
allegations of sexual abuse.‖ p. 1342. ―Intentionally false allegations in the context of parental
separation are not as prevalent as suggested by some fathers' rights advocates and critics of the
child protection system.‖ p. 1342. ―The data presented here clearly reveal that rates of deliberate
fabrication of abuse by custodial parents is relatively low, alleviating the concerns that there is a
widespread problem of custodial parents trying to manipulate the legal system or seek vengeance
against their former partners.‖ p. 1343.); Gail L. Zellman & C. Christine Fair, Preventing and
Reporting Abuse. In John E.B. Myers, Lucy Berliner, John Briere, C. Terry Hendrix, Carole
Jenny, & Theresa A. Reid (Eds.), The APSAC Handbook on Child Maltreatment, pp. 449-475, at
467 (2002) (Thousand Oaks, Cal.: Sage) (―Despite widespread concern about false allegations,
little empirical data exist concerning them.‖).
112
Separate, 29 Child Abuse & Neglect 1333-1345 (2005)
But see Edward Greer, The Truth Behind Legal Dominance Feminism's ―Two Percent False
Rape Claim‖ Figure, 33 Loyola of Los Angeles Law Review 947-972 (2000)(author argues that
the claim that only 2% of rape claims are fabricated is itself fabricated); Debra A. Poole & D.
Stephen Lindsay, Assessing the Accuracy of Young Children's Reports: Lessons from the
Investigation of Child Sexual Abuse, 7 Applied & Preventive Psychology 1-26 (1998)(―For many
years, it was frequently claimed that about 5%-8% of sexual abuse allegations were false.… This
estimate of the false allegation rate is misleadingly low because of the practice of counting only
intentionally false allegations.… When these other mechanisms were included (e.g., honest
misunderstanding of children's statements or problems caused by reliance on presumed indicators
of abuse followed by suggestive interviewing), rate of false allegations rose considerably (e.g.,
from 6% to 23% in Jones and McGraw, 1987 [David P.H. Jones & J. Melbourne McGraw,
Reliable and Fictitious Accounts of Sexual Abuse to Children, 2 Journal of Interpersonal
Violence 27-45 (1987)]; from 8.8% to 35% in Faller, 1991 [Kathleen C. Faller, Possible
Explanations for Child Sexual Abuse Allegations in Divorce, 61 American Journal of
Orthopsychiatry 86-91 (1991)]‖).
113
R. Kim Oates, David P.H. Jones, David Denson, Andrew Sirotnak, Nancy Gray, &
Richard D. Krugman, Erroneous Concerns About Child Sexual Abuse, 24 Child Abuse & Neglect
149-157, at 153 (2000)(―The group of erroneous concerns by children comprised 2.5% of all
23
cases than elsewhere.114 Even in custody litigation, however, the rate of fabrication is low.115
§6.07 MEDICAL EVIDENCE OF CHILD SEXUAL
ABUSE
Expert testimony from medical professionals plays an important role in child sexual abuse
litigation. Expert testimony is provided by physicians,116 nurses,117 and physician assistants.118 In
concerns presented, and is similar to the range 2%-8% found by other authors.… It seems
reasonable to conclude on the basis of this and previous studies, that erroneous concerns of sexual
abuse emanating from children themselves are relatively uncommon, but do occur.… We were
able to identify three groups of circumstances where erroneous concerns emanate from children.
These were: through collusion with a parent, by misinterpretation or confusion, or by deliberately
concocting an account.‖); Gail L. Zellman & C. Christine Fair, Preventing and Reporting Abuse.
In John E.B. Myers, Lucy Berliner, John Briere, C. Terry Hendrix, Carole Jenny, & Theresa A.
Reid (Eds.), The APSAC Handbook on Child Maltreatment, pp. 449-475, at 468 (2002)
(Thousand Oaks, Cal.: Sage).
114
Thea Brown, Margarita Frederico, Lesley Hewitt, & Rosemary Sheehan, Revealing the
Existence of Child Abuse in the Context of Marital Breakdown and Custody and Access
Disputes, 4 Child Abuse & Neglect 849-859, at 852 (2000)(―Child abuse allegations in the Family
Court were found to be false no more frequently than child abuse allegations made in other
circumstances; some 9% were found to be false.‖ Australian data); Nico Trocme & Nicholas
Bala, False Allegations of Abuse and Neglect When Parents Separate, 29 Child Abuse & Neglect
1333-1345 (2005); Gail L. Zellman & C. Christine Fair, Preventing and Reporting Abuse. In John
E.B. Myers, Lucy Berliner, John Briere, C. Terry Hendrix, Carole Jenny, & Theresa A. Reid
(Eds.), The APSAC Handbook on Child Maltreatment 449-475, at 468 (2002)(Thousand Oaks,
Cal.: Sage).
See In re Marriage of Albright, 736 N.E.2d 782 (Ind. Ct. App. 2000)(unsupported allegation
of child molestation in custody case); P.T. v. M.S., 325 N.J. Super. 193, 738 A.2d 385, 385 (App.
Div. 1999)(―This case is an example of a tragic but recurring dilemma in certain family court
cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of
imagined or even fabricated charges against a parent, especially when raised during the pendency
of divorce proceedings. For a parent to stand accused of such an offense is devastating both to
that individual, and to the child's life-long relationship with the parent. On the other hand, proof
of such abuse, especially involving a very young child, is rarely clear, and the potential danger to
a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.‖).
115
Separate, 29 Child Abuse & Neglect 1333-1345 (2005); Gail L. Zellman & C. Christine Fair,
Preventing and Reporting Abuse. In John E.B. Myers, Lucy Berliner, John Briere, C. Terry
Hendrix, Carole Jenny, & Theresa A. Reid (Eds.), The APSAC Handbook on Child Maltreatment
449-475, at 468 (2002)(Thousand Oaks, Cal.: Sage).
116
Baptiste v. Government of the Virgin Islands, 240 F. Supp. 2d 381 (D.V. I. 2003)(―Here,
the government established that Dr. Lockridge was qualified to testify as ‗an expert in pediatrics
with knowledge in the area of child sexual abuse.‘ Dr. Lockridge was a pediatrician who had
treated nearly one hundred children alleged to have been sexually or physically abused. She
attended symposiums and seminars on child abuse, and lectured on the subject. She obtained
experience in psychiatry while in medical school. The fact that Dr. Lockridge conceded that she
was not a ‗expert in child abuse‘ did not require the trial judge sua sponte to rule her testimony
inadmissible. As this Court said in [Government of the Virgin Islands v. Sampson, 94 F. Supp. 2d
24
most cases, the expert is the medical professional who physically examined the child. The
professional describes the examination. Less often, the expert did not examine the youngster, but
critiques the examination or the conclusions of the examining professional.
[A] Medical Evidence of Sexual Abuse Seldom Exists
In most sexual abuse cases there is no medical evidence.119 Finkel explains, ―Physical
findings that reflect acute or chronic residua to sexual contact are infrequent. For the most part,
639 (D.V.I. 2000)], ‗[o]nce a doctor is qualified to testify as an expert medical specialist in one
area, proof of [her] qualifications in another speciality is not required before [she] can testify in
that other speciality.‘ The trial judge, having admitted Dr. Lockridge as an expert in pediatrics
with ‗specialized knowledge in the area of child sexual abuse,‘ did not err in permitting Dr.
Lockridge to testify about any possible psychologically-related reasons that might have prevented
Lee-Ann from reporting the incident with Baptiste earlier.‖); State v. Mort, 321 S.W.3d 471 (Mo.
Ct. App. 2010).
117
Rodriguez v. State, 281 Ga. App. 129, 635 S.E.2d 402 (2006)(SANE nurse was qualified
to testify as an expert); Turner v. State, 720 N.E.2d 440 (Ind. Ct. App. 1999)(nurse properly
allowed to testify); State v. Benny E., 110 N.M. 237, 794 P.2d 380, 388 (Ct. App. 1990)(nurse
practitioner with extensive experience qualified as expert on medical aspects of sexual abuse);
State v. Macias, 110 N.M. 246, 794 P.2d 389, 395 (Ct. App. 1990)(―We see no need for Nurse
Tulk to have been a physician or to have her diagnosis confirmed by a physician in order for her
to qualify as an expert witness in this area.‖); State v. Clay, 235 Or. App. 26, 230 P.3d 72 (2010).
118
A properly qualified physician assistant would have no difficulty qualifying as an expert.
119
Jim Anderst, Nancy Kellogg & Inkyung Jung, Reports of Repetitive Penile-Genital
Penetration Often Have No Definitive Evidence of Penetration, 124 Pediatrics e403-e409 (2009)
(―Clinicians with expertise in the evaluation of sexually abused children frequently assess young
girls who provide a history of repetitive penetrative abuse but have no corroborative evidence on
genital examination.‖ p. e404. ―[S]tudies have established clearly that most anogenital
examinations of child and adolescent sexual abuse victims reveal no definitive evidence of
abuse.…‖ p. e404. In this study, ―[t]he majority of children ≥ 10 years of age who reported > 10
penetrative events had no evidence of penetrative trauma. We detected no association between the
number of reported penile-genital penetrative events and definitive genital findings of healed
trauma. This study establishes that child victims who report repetitive nonacute penetrative abuse
have no definitive evidence of trauma on examination of the hymen in most cases.‖ p. e407.
―Most victims who reported repetitive penile-genital contact that involved some degree of
perceived penetration had not definitive evidence of penetration on examination of the hymen.
Similar results were seen for victims of multiple assault episodes over long periods of time, as
well as for victims with a history of consensual sex. Children ≥ 10 years of age might have
perceived and described penetration more accurately or might have been subjected to more
penetrative abuse, compared with children < 10 years of age.‖ p. e409); Molly Curtin Berkoff,
Adam J. Zolotor, Kathi L. Makoroff, Jonathan D. Thackeray, Robert A. Shapiro & Desmond K.
Rynyan, Has This Prepubertal Girl Been Sexually Abused?, 300 Journal of the American Medical
Association 2779-2792 (2008) (―Among children who recently have been sexually abused (≤ 72
hours) and have had forensic evidence collected, up to 25% may have evidence of acute
anogenital injury.… When looking at the prevalence of significant physical findings in non-acute
examinations, case-series reports note that 95% of children with a history of sexual abuse will
have unremarkable physical examinations.‖ p. 2780); Cynthia DeLago, Esther Deblinger,
Christine Schroeder & Martin A. Finkel, Girls Who Disclose Sexual Abuse: Urogenital
Symptoms and Signs After Genital Contact, 122 Pediatrics e281-e286 (2008); Howard
25
this is the result of 2 dynamics: (a) the individual engaging the child does not intend to hurt the
child physically, and (b) most children do not disclose immediately following their last contact
for fear of harm. The lack of physical evidence alone should not lead to the conclusion that
inappropriate sexual contact did not occur.‖120 Many abusive acts (e.g., fondling, kissing, fellatio,
cunnilingus, creation of pornography) leave no marks.121 Even penile penetration is not invariably
injurious.122 When injury does occur, healing is generally rapid and complete.123 Within days, all
physical signs may disappear.
Dubowitz, Healing of Hymenal Injuries: Implications for Child Health Care Professionals, 119
Pediatrics 997-999 (2007)(referring to genital injuries, ―In general, they heal rapidly and often
completely.… [R]elatively few girls evaluated for sexual abuse have abnormal findings on
physical examination. Fortunately, most sexually abused girls do not experience serious physical
trauma, primarily because of the nature of the abuse.‖ p. 997. ―In addition to the customary
caution that a ‗normal‘ examination does not rule out sexual abuse, there is the need to
acknowledge that current hymenal normalcy does not preclude earlier injury. Even many of the
more serious injuries healed without leaving a trace. Their study confirms the need for
considerable constraint in interpreting the physical findings (i.e., the likelihood of abuse) beyond
the acute period.‖ p. 998. ―[P]hysical evidence may disappear within a few days, especially
petechiae, the most common finding.‖ p. 998.); Malene Hilden, Berit Schei, & Katrine Sidenius,
Genitoanal Injury in Adult Female Victims of Sexual Assault, 154 Forensic Sci. Int. 200-205
(2005)(frequency of injury in this study of adult victims was highest with anal penetration and
lowest with digital penetration or ―pawing of the genitals‖); John McCann, Sheridan Miyamoto,
Cathy Boyle & Kristen Rogers, Healing of Hymenal Injuries in Prepubertal and Adolescent Girls:
A Descriptive Study, 119 Pediatrics e1094-e1106 (2007)(―As a hymenal laceration heals, it may
or may not leave evidence of the previous injury.‖ p. e1095).
See People v. Stitely, 35 Cal. 4th 514, 543, 108 P.3d 182, 201, 26 Cal. Rptr. 3d 1, 23
(2005)(―the lack of vaginal injury does not preclude the jury from finding rape or prevent this
court from upholding that determination on appeal.‖);
120
Martin A. Finkel, Physical Examination. In Martin A. Finkel & Angelo P. Giardino (Eds.),
Medical Evaluation of Child Sexual Abuse: A Practical Guide 53-103, at 77 (3rd ed.
2009)(American Academy of Pediatrics).
121
American Academy of Pediatrics, Committee on Child Abuse and Neglect, Guidelines for
the Evaluation of Sexual Abuse of Children: Subject Review, 103 Pediatrics 186-191, 188
(1999)(―The diagnosis of child sexual abuse often can be made based on a child's history.
Physical examination alone is infrequently diagnostic in the absence of a history and/or specific
laboratory findings. Physical findings are often absent even when the perpetrator admits to
penetration of the child's genitalia. Many types of abuse leave no physical evidence, and mucosal
injuries often heal rapidly.‖); Molly Curtin Berkoff, Adam J. Zolotor, Kathi L. Makoroff,
Jonathan D. Thackeray, Robert A. Shapiro & Desmond K. Rynyan, Has This Prepubertal Girl
Been Sexually Abused?, 300 Journal of the American Medical Association 2779-2792
(2008)(―Among children who recently have been sexually abused (≤ 72 hours) and have had
forensic evidence collected, up to 25% may have evidence of acute anogenital injury.… When
looking at the prevalence of significant physical findings in non-acute examinations, case-series
reports note that 95% of children with a history of sexual abuse will have unremarkable physical
examinations.… [T]he hymen and surrounding tissues heal rapidly, often leaving no signs of
healed trauma. Finally, penetration may have occurred without causing physical injury.… A
completely normal examination does not exclude abuse and is the most frequent examination
finding in children who have been sexually abused.‖ p. 2780).
122
American Academy of Pediatrics, Committee on Child Abuse and Neglect, Guidelines for
the Evaluation of Sexual Abuse of Children: Subject Review, 103 Pediatrics 186-191, 188
26
[B] Medical History
Before performing a physical examination for sexual abuse, the professional takes the child‘s
medical history.124 If the child is old enough, the professional obtains the history from the child.
With little children, and many older children too, the history is obtained from parents. Finkel
writes, ―The cornerstone of evaluating any medical problem is the medical history. The medical
history determines how the physician will proceed with the examination and the scope of testing
required.‖125 The Oregon Supreme Court recognized the importance of the medical history in
State v. Southard,126 where the court wrote, ―Taking a history from family members or caregivers
is neither novel nor unusual. Gathering a patient‘s history from those sources is a standard feature
of medicine relied upon by doctors to diagnose a wide variety of conditions.‖127
A patient's medical history includes the chief complaint, a description of the present illness,
(1999)(―The diagnosis of child sexual abuse often can be made based on a child's history.
Physical examination alone is infrequently diagnostic in the absence of a history and/or specific
laboratory findings. Physical findings are often absent even when the perpetrator admits to
penetration of the child's genitalia. Many types of abuse leave no physical evidence, and mucosal
injuries often heal rapidly.‖); Molly Curtin Berkoff, Adam J. Zolotor, Kathi L. Makoroff,
Jonathan D. Thackeray, Robert A. Shapiro & Desmond K. Rynyan, Has This Prepubertal Girl
Been Sexually Abused?, 300 Journal of the American Medical Association 2779-2792 (2008)
(―Finally, penetration may have occurred without causing physical injury.… A completely
normal examination does not exclude abuse and is the most frequent examination finding in
children who have been sexually abused.‖ p. 2780).
123
Molly Curtin Berkoff, Adam J. Zolotor, Kathi L. Makoroff, Jonathan D. Thackeray,
Robert A. Shapiro & Desmond K. Rynyan, Has This Prepubertal Girl Been Sexually Abused?,
300 Journal of the American Medical Association 2779-2792 (2008) (―Among children who
recently have been sexually abused (≤ 72 hours) and have had forensic evidence collected, up to
25% may have evidence of acute anogenital injury.… When looking at the prevalence of
significant physical findings in non-acute examinations, case-series reports note that 95% of
children with a history of sexual abuse will have unremarkable physical examinations.… [T]he
hymen and surrounding tissues heal rapidly, often leaving no signs of healed trauma. Finally,
penetration may have occurred without causing physical injury.… A completely normal
examination does not exclude abuse and is the most frequent examination finding in children who
have been sexually abused.‖ p. 2780); Howard Dubowitz, Healing of Hymenal Injuries:
Implications for Child Health Care Professionals, 119 Pediatrics 997-999, at 997 (2007)
(referring to genital injuries, ―In general, they heal rapidly and often completely.… [R]elatively
few girls evaluated for sexual abuse have abnormal findings on physical examination.
Fortunately, most sexually abused girls do not experience serious physical trauma, primarily
because of the nature of the abuse.‖); See id.
124
Martin A. Finkel, Medical Aspects of Prepubertal Sexual Abuse. In Robert M. Reece &
Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis and Management 269-319, at 270
(3d ed. 2009)(American Academy of Pediatrics); Astrid Heger, Lynne Ticson, Oralia Velasquez,
& Raphael Bernier, Children Referred for Possible Sexual Abuse: Medical Findings in 2384
Children, 26 Child Abuse & Neglect 645-659, 655 (2002)(―The history from the child remains the
most important part of any assessment.‖).
125
Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis and Management 269-319, at 270
(3d ed. 2009)(American Academy of Pediatrics).
126
347 Or. 127, 218 P.3d 104 (2009).
127
218 P.3d at 109.
27
past medical history, family history, psychosocial history, and a review of body systems.128 A
child's medical history is pertinent in several ways to diagnosis and treatment of sexual abuse.
The history helps the professional exclude or confirm a diagnosis of abuse. The history helps
ascertain if a child is at risk of further abuse. For example, the history may reveal that the
perpetrator is in the home, or has access to the child, or that there are other perpetrators. The
history informs the clinician's decisions about laboratory tests and referral to specialists. The
history may determine the professional's recommendations for medical or psychological therapy.
Finally, the history assists in determining a prognosis.
When a professional‘s examination of a child‘s body discloses no physical evidence of sexual
abuse, the child's medical history is often all the professional has to go on to reach a diagnosis. In
this respect, sexual abuse has parallels to a number of diseases that cannot be detected by physical
examination.129 Angina pectoris (heart pain), for example, may not be apparent on physical
examination. Because the angina patient is likely to have a normal physical examination, it is the
medical history that establishes the diagnosis and guides further testing and treatment. Like the
angina patient, many sexual abuse victims have a normal physical examination, and the history is
the most important data for reaching a diagnosis.
[C] Expert Testimony on Lack of Physical Injury
As mentioned previously, medical evidence exists in only a minority of sexual abuse cases.
When there is no medical evidence, may the prosecutor offer expert testimony that lack of
physical findings does not rule out sexual abuse?130 Certainly, if the defense argues that lack of
physical findings proves there was no abuse, the prosecution should be allowed to respond with
expert testimony that most sexual abuse does not cause physical injury.131
128
Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis and Management 269-319 (3d ed.
2009)(American Academy of Pediatrics); Astrid Heger, Lynne Ticson, Oralia Velasquez, &
Raphael Bernier, Children Referred for Possible Sexual Abuse: Medical Findings in 2384
Children, 26 Child Abuse & Neglect 645-659 (2002).
129
State v. Southard, 347 Or. 127, 218 P.3d 104 (2009).
130
People v. Rowland, 4 Cal. 4th 238, 841 P.2d 897, 14 Cal. Rptr. 2d 377, 394 (1992)(proper
for prosecutor to offer expert testimony ―to the effect that the absence of genital trauma is not
inconsistent with nonconsensual sexual intercourse‖; court rejected defense argument that such
testimony is admissible only ―in response to evidence or argument that ‗no genital trauma‘ means
‗no rape.‘‖).
131
‗no rape.‘‖); Commonwealth v. Hrabak, 440 Mass. 650, 801 N.E.2d 239, 243 (Mass.
2004)(―Expert testimony is necessary to address issues concerning a child sexual abuse victim's
lack of injury.… Where the Commonwealth counters a defendant's argument concerning a lack of
evidence of injury to a child sexual abuse complainant by offering a medical or anatomical reason
(here, by arguing the flexibility of the rectum), that reason must be supported by expert
testimony. The flexibility of a child's rectum to accommodate an adult penis without injury is a
matter beyond the common understanding of most jurors.‖); Commonwealth v. Federico, 425
Mass. 844, 683 N.E.2d 1035 (1997)(―In the absence of evidence of physical injury, a medical
expert may be able to assist the jury by informing them that the lack of such evidence does not
necessarily lead to the medical conclusion that the child was not abused.… Medical experts, like
28
But what if the defense does not take that tack?132 Absent a defense argument that lack of
medical evidence means nothing happened, should the prosecutor be allowed to offer expert
testimony that absence of physical injury does not rule out sexual abuse? Jurors may believe
some forms of abuse (e.g., penetration) invariably cause injury.133 In such cases, the prosecutor
should be allowed to offer expert testimony to forestall misconceptions about sexual abuse. 134
other experts, may not opine as to whether a particular child has been sexually abused.‖ 683
N.E.2d at 1040. ―The jury may be under the mistaken understanding that certain types of sexual
abuse always or nearly always causes physical injury or scarring in the victim. Particularly where
the defendant argues that the absence of any scarring or injury is evidence that the abuse did not
occur, expert medical testimony to the contrary may assist the jury in properly evaluating the
evidence.‖ 683 N.E.2d at 1041 n.13).
132
‗no rape.‘‖).
133
James F. Calvert & Michelle Munsie-Benson, Public Opinion and Knowledge About
Childhood Sexual Abuse in a Rural Community, 23 Child Abuse & Neglect 671-682, 675
(1999)(―Overall, 39% of the respondents recognized that physical signs would be evident in only
some cases of CSA, while 61% thought that they would most often or always be present.‖).
134
United States v. Wright, 119 F.3d 630, 635 (8th Cir. 1997) (witness's testimony that
witness ―conducted a ‗sexual molestation exam‘ and that in his opinion the lack of medical
evidence was not inconsistent with molestation‖ was admissible); People v. Rowland, 4 Cal. 4th
238, 841 P.2d 897, 14 Cal. Rptr. 2d 377, 394 (1992)(proper for prosecutor to offer expert
testimony ―to the effect that the absence of genital trauma is not inconsistent with nonconsensual
sexual intercourse‖; court rejected defense argument that such testimony is admissible only ―in
response to evidence or argument that ‗no genital trauma‘ means ‗no rape.‘‖); Floray v. State, 720
A.2d 1132, 1136 (Del. 1998)(―Dr. DeJong's statements that his findings are ‗consistent‘ with
abuse constituted an explanation to the jury that it should not disregard the claims simply because
his examination could not affirmatively verify them.‖); State v. Gerry, 855 So. 2d 157, 160 (Fla.
Ct. App. 2003)(state is permitted to offer expert testimony on lack on injury; ―This is relevant
evidence that the State is entitled to present to the jury so that the jury may not be misled into
believing that a conviction is inappropriate unless the State produces evidence of physical trauma
to the victims.‖); Turner v. Commonwealth, 914 S.W.2d 343, 344 (Ky. 1996)(not error to allow
two physicians to testify that although their examination was normal, ―such negative findings of
physical scarring, tears, etc., did not necessarily indicate that the sexual abuse complained of did
not occur.‖); Commonwealth v. Hrabak, 440 Mass. 650, 801 N.E.2d 239, 243 (Mass.
2004)(―Expert testimony is necessary to address issues concerning a child sexual abuse victim's
lack of injury.… Where the Commonwealth counters a defendant's argument concerning a lack of
evidence of injury to a child sexual abuse complainant by offering a medical or anatomical reason
(here, by arguing the flexibility of the rectum), that reason must be supported by expert
testimony. The flexibility of a child's rectum to accommodate an adult penis without injury is a
matter beyond the common understanding of most jurors.‖); Commonwealth v. Federico, 425
Mass. 844, 683 N.E.2d 1035 (1997)(―In the absence of evidence of physical injury, a medical
expert may be able to assist the jury by informing them that the lack of such evidence does not
necessarily lead to the medical conclusion that the child was not abused.… Medical experts, like
other experts, may not opine as to whether a particular child has been sexually abused.‖ 683
N.E.2d at 1040. ―The jury may be under the mistaken understanding that certain types of sexual
abuse always or nearly always causes physical injury or scarring in the victim. Particularly where
29
Such preemptive testimony is analogous to evidence of fresh complaint of rape, which disabuses
jurors of misconceptions about victims of sexual assault.135 On the other hand, with forms of
sexual touching that typically do not cause injury (e.g., touching over clothes), the argument for
preemptive expert testimony is less persuasive, and the judge should have discretion to exclude or
admit testimony that lack of injury is not inconsistent with abuse.136
[D] Expert Testimony that a Child Has a Diagnosis of
Sexual Abuse
When medical evidence of sexual abuse exists, expert testimony describing the evidence is
admissible.137 A medical witness may describe injuries and explain their cause.138 An expert may
the defendant argues that the absence of any scarring or injury is evidence that the abuse did not
occur, expert medical testimony to the contrary may assist the jury in properly evaluating the
evidence.‖ 683 N.E.2d at 1041 n.13); State v. Streater, 678 S.E.2d 367 (N.C. Ct. App. 2009)(―Dr.
Pringle testified ‗in general‘ that physical findings are not always present in sex abuse cases. This
conclusion was proper testimony and provided the needed evidence for the State.‖ p. 374. Other
expert testimony exceeded permissible bounds).
135
See § 7.14.
The court balances the probative value of the evidence—slight in this instance—against
the danger of unfair prejudice to the defendant. Might the jury mistakenly come to view the
expert‘s testimony as an implicit statement by the expert that the expert believes the child was
abused?
137
King v. Evans, 621 F. Supp. 2d 850 (N.D. Cal. 2009)(habeas corpus; defense counsel
rendered ineffective assistance by failing to hire medical expert to evaluate prosecution's medical
expert testimony); State v. Martin, 225 Ariz. 162, 235 P.3d 1045, 1047 (Ct. App. 2010)(―A
medical perianal exam performed that morning on C.Y. revealed a ‗raw‘ and ‗very fresh‘ acute
tear and superficial abrasions consistent with a ‗penetrating-type trauma.‘‖); Marcum v. State,
299 Ark. 30, 771 S.W.2d 250, 253 (1980)(not error to admit testimony from physician that
physical examination of victim indicated ―physical characteristics consistent with prolonged
sexual activity‖); People v. Benavides, 35 Cal. 4th 69, 105 P.3d 1099, 24 Cal. Rptr. 3d 507
(2005)(defendant anally raped 21-month-old causing fatal internal injuries); People v. Mendibles,
199 Cal. App. 3d 1277, 245 Cal. Rptr. 553 (1988); Floray v. State, 720 A.2d 1132 (Del. 1998);
State v. Butler, 256 Ga. 448, 349 S.E.2d 684 (1986); People v. Land, 178 Ill. App. 3d 251, 533
N.E.2d 57 (1988); Owens v. State, 514 N.E.2d 1257 (Ind. 1987); Commonwealth v. Federico,
425 Mass. 844, 683 N.E.2d 1035, 1041 n.12 (1997)(―Evidence of physical injury of abuse is not
always available in child sexual abuse cases, but is admissible when available.‖); Commonwealth
v. Melchionno, 29 Mass. App. Ct. 939, 558 N.E.2d 18, 20-21 (1990); People v. Vasher, 167
Mich. App. 452, 423 N.W.2d 40 (1988); Poynor v. State, 962 So. 2d 68 (Miss. Ct. App.
2006)(proper for pediatrician who examined child to testify that child's hymen had multiple
notches that were consistent with penetration); State v. Price, 165 S.W.3d 568 (Mo. Ct. App.
2005)(rectal scarring was consistent with abuse); In re Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d
229 (2009); People v. Sparman, 202 A.D.2d 452, 608 N.Y.S.2d 672 (1994)(evidence of tears to
hymen admissible); State v. Hammett, 361 N.C. 92, 637 S.E.2d 518, 519 (2006)(―In this case, we
consider whether the trial court committed error in admitting a medical expert's opinion that a
child had been sexually abused, based on the child's statements and physical evidence found
during an examination.… [W]e conclude that the interlocking facts of the victim's history
combined with the physical findings constituted a sufficient basis for the expert opinion that
sexual abuse had occurred.‖); State v. Couser, 594 S.E.2d 420 (N.C. Ct. App. 2004)(physician
136
30
state whether injuries could happen in a particular way.139 An expert may state whether a
caretaker's explanation of injuries is reasonable.140
May a doctor or nurse testify that a child has a diagnosis of sexual abuse?141 When the
diagnosis rests on medical evidence combined with medical history and additional information,142
the answer is typically ―Yes.‖143 Sexual abuse is an accepted medical diagnosis. In the typical
case, however, there is no medical evidence, and the diagnosis rests largely on the child‘s
disclosure144 supported by non-medical information.145 A diagnosis resting on a child‘s disclosure
is concerning.146 In United States v. Charley,147 the Tenth Circuit considered a doctor‘s opinion
that girls were sexually abused. The court wrote, ―Dr. Ornelas testified that her examination of
described two abrasions on each side of introitus; this was not sufficient evidence to support
doctor's opinion that victim was sexually abused); State v. Brothers, 151 N.C. App. 71, 564
S.E.2d 603 (2002); State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652, 655 (1990) (evidence of
medical examination conducted two years following abuse admissible); State v. Boston, 46 Ohio
St. 3d 108, 545 N.E.2d 1220, 1239-1240 (1989); Warner v. State, 144 P.3d 838 (Okla. Crim.
App. 2006); Vela v. State, 209 S.W.3d 128, 129 (Tex. Crim. App. 2006)(―The trial judge
excluded the testimony of Richard Vela, Jr.'s witness, Cheryl Hartzendorf, who would have
testified that if there is not physical evidence, then no rape occurred.‖); Zuniga v. State, 811
S.W.2d 177 (Tex. Ct. App. 1991); State v. Gribble, 60 Wash App. 374, 804 P.2d 634 (1991);
State v. Young, 60 Wash. App. 95, 802 P.2d 829 (1991); Montoya v. State, 822 P.2d 363 (Wyo.
1991).
138
State v. Hudson, 208 P.3d 1236 (Wash. Ct. App. 2009) (adult victim had vaginal and anal
injuries; SANE nurses testified to the injuries; the nurses went on to opine that the ―injuries were
caused by nonconsensual sex.‖ 208 P.3d at 1240. The majority held that an opinion that sex was
nonconsensual was impermissible; the court stated that a medical professional could ―testify
about the amount of pain Whitcher suffered from her injuries. As experienced medical
professionals, the SANEs were certainly qualified to testify as to Whitcher's level of pain from
their training and experience. The conclusion that is not appropriate, however, is in connecting
the medical issue of pain to the legal issue of consent. That inquiry is for the trier of fact alone.‖
208 P.3d at 1240 n. 3.); See People v. Mendibles, 199 Cal. App. 3d 1277, 1293, 245 Cal. Rptr.
553, 562 (1988) (―[I]t is settled by ‗a long line of California decisions‘ that an expert medical
witness is qualified ‗to give an opinion of the cause of a particular injury on the basis of the
expert's deduction from the appearance of the injury itself‘‖); Commonwealth v. Fink, 791 A.2d
1235, 1247 (Pa. Super. 2002) (―A physician is permitted to testify that his or her findings
following examination are consistent with a victim's allegations of abuse.‖).
139
Owens v. State, 514 N.E.2d 1257 (Ind. 1987).
140
State v. Tanner, 675 P.2d 539, 544 (Utah 1983)(physical abuse case).
141
The jury understands that a doctor‘s diagnosis a child was sexually abused is also an
opinion the doctor believes the child was abused. See State v. Southard, 347 Or. 127, 218 P.3d
104 (2009).
142
The ―additional information‖ can be anything that strengthens the inference that a child
was sexually abused. Examples include developmentally unusual sexual knowledge in a young
child or a confession by the suspect.
143
144
United States v. Charley, 189 F.3d 1251, 1265-1266 (10th Cir. 1999).
State v. Southard, 347 Or. 127, 218 P.3d 104 (2009).
146
One can argue that such a diagnosis is little more than the professional‘s judgment that the
child was credible. See United States v. Charley, 189 F.3d 1251 (10th Cir. 1999).
147
189 F.3d 1251 (10th Cir. 1999).
145
31
the girls showed no physical evidence of sexual abuse.… The problem with Dr. Ornelas'
testimony lies in the fact that she was permitted to give the jury her unconditional opinion that
each of the girls was in fact sexually abused.… She evidently based this opinion on what the girls
said, to her and others.… [I]f the conclusion was based on the girls' allegations, Dr. Ornelas was
merely vouching for the credibility of the child complainants.‖148
Absent medical evidence, a physician or nurse‘s diagnosis of sexual abuse is no different than
a diagnosis/opinion formulated by a mental health professional. The capacity of mental health
professionals to make reliable judgments about sexual abuse is analyzed in §§ 6.10 – 6.11.
Suffice to say, the topic is controversial.
In State v. Southard,149 the Oregon Supreme Court grappled with the admissibility of a
physician‘s diagnosis of sexual abuse in the absence of medical evidence. A six-year-old
disclosed abuse and was taken for evaluation to a specialized center where a social worker and a
physician work as a team. The social worker obtained the child‘s history and conducted a video
recorded interview. The physician examined the child but found no medical evidence of sexual
abuse. The two professionals consulted and the doctor diagnosed sexual abuse. At defendant‘s
trial, the doctor testified to the diagnosis. On appeal, the parties agreed that a doctor‘s diagnosis
of sexual abuse is scientific evidence that must be sufficiently reliable for use in court.150 The
Oregon Supreme Court held that a medical diagnosis of sexual abuse—based on assessment
techniques like the ones used in the instant case—―has sufficient indicia of scientific validity to
be admissible.‖151
Although the Oregon Supreme Court ruled that the doctor‘s diagnosis passed scientific
muster, the court held that the diagnosis—based as it was on no medical evidence—was
inadmissible. The court noted that a diagnosis of child sexual abuse differs from most medical
diagnoses. ―Most medical diagnoses provide jurors with information that is beyond their common
experience. . . . A diagnosis of child sex abuse, however, determines whether conduct (an act of
sexual abuse by another person) has occurred; the conduct is not complicated, and the ability to
determine its occurrence often is a matter within a lay person‘s competence.‖152 The doctor‘s
diagnosis did not tell the jury anything it could not figure out on its own.153 Because the jury was
capable of analyzing the evidence, the doctor‘s opinion had minimal value.154 Balanced against its
minimal probative value, the diagnosis carried considerable risk of unfair prejudice to the
defendant. The court wrote, ―The fact that the diagnosis came from a credentialed expert,
surrounded with the hallmarks of the scientific method, created a substantial risk that the jury
‗may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of
the evidence.‘ . . . [T]he diagnosis is particularly problematic because the diagnosis, which was
based primarily on an assessment of the boy‘s credibility, posed the risk that the jury will not
make its own credibility determination, which it is fully capable of doing, but will instead defer to
148
189 F.3d at 1265-1266.
347 Or. 127, 218 P.3d 104 (2009).
150
218 P.3d at 107.
151
218 P.3d at 110.
152
218 P.3d at 108.
153
218 P.3d at 111. The court wrote: ―[T]he criteria that the staff used to decide whether to
credit the boy‘s testimony are essentially the same criteria that we expect juries to use every day
in courts across this state and to decide whether witnesses are credible.‖ 218 P.3d at 112.
154
218 P.3d at 112.
149
32
the expert‘s implicit conclusion that the victim‘s reports of abuse are credible. . . . In our view,
the risk of prejudice substantially outweighs the minimal probative value of the diagnosis.‖155
Southard‘s reasoning and conclusion are powerful.156 The court could have reached the same
result—the diagnosis was inadmissible—by a different route. The court ruled that the doctor‘s
diagnosis was sufficiently reliable to be admissible. An argument can be made a diagnosis of
sexual abuse in the absence of medical evidence is not sufficiently reliable to be admissible. The
pros and cons of this argument are developed in § 6.11.
May a medical professional eschew diagnostic terminology and testify that a child‘s
symptoms are ―consistent with sexual abuse‖?157 As with the analysis of ―diagnosis,‖ it is useful
to know whether the professional‘s opinion rests in part on medical evidence (e.g., injury,
sexually transmitted infection (STI)). If there is medical evidence of sexual abuse, a doctor or
nurse‘s testimony that the medical findings are ―consistent with sexual abuse‖ may be
permissible. Absent medical evidence, a doctor or nurse‘s opinion that a child‘s disclosure and
psychological symptoms are ―consistent with‖ sexual abuse is indistinguishable from a mental
health professional‘s opinion on the same point. In § 6.11[D], the argument is developed that
expert testimony that a child‘s non-medical symptoms are ―consistent with sexual abuse‖ should
be inadmissible in court unless certain requirements are satisfied. The requirements described in §
6.11[D] for mental health professionals are equally applicable to ―consistent with‖ testimony
from medical professionals.
§6.08 PHYSICAL EXAMINATION
218 P.3d at 112. ―The only question on review is whether a diagnosis of ‗sexual abuse‘—
i.e., a statement from an expert that, in the expert‘s opinion, the child was sexually abused—is
admissible in the absence of any physical evidence of abuse. We hold that where, as here, that
diagnosis does not tell the jury anything that it could not have determined on its own, the
diagnosis is not admissible under OEC 403.‖ 218 P.3d at 113.
156
State v. Clay, 235 Or. App. 26, 230 P.3d 72 (2010)(nurse‘s diagnosis of sexual abuse in
the absence of medical evidence not admissible).
157
Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005)(―Whether Dr. Inhoffe's testimony
amounted to impermissible vouching is a close call. Nevertheless, viewed in its entirety, we
cannot conclude that her testimony violated the general due process standard outlined in Supreme
Court precedent. Dr. Inhoffe's testimony centered around her medical examination of the child
and statements made by the child showing precocious familiarity with the sexual function. It was
Dr. Inhoffe's opinion, taken in context, that the child's statements of excessive sexual knowledge
were consistent with abuse. The expert did not opine or testify that Parker committed sexual
abuse. The two ‗statements‘ of opinion that sexual abuse took place consisted of only an
affirmative ‗yes‘ and, taken in the context of her testimony as a whole, refer back to her view that
the child had excessive sexual knowledge consistent with previous abuse.… There is no bright
line test for when such testimony crosses the line into the jury's realm.… Dr. Inhoffe was not
asked to provide opinion testimony about the child's propensity to lie or tell the truth.… [E]xperts
may testify about symptoms consistent with sexual abuse without improperly vouching for the
witness's credibility. Viewed in context, Dr. Inhoffe's testimony indicated that the information she
gained through examination of the child was consistent with a person who suffered sexual
abuse.‖); Punches v. State, 944 P.2d 1131, 1136 (Wyo. 1997)(physician testified that findings of
anal trauma were consistent with sexual abuse; ―Testifying that the injuries were consistent with
sexual abuse is not directly expressing an opinion that there was sexual abuse, that the victim is
telling the truth, or that the defendant was guilty of sexual abuse.‖).
155
33
Although most forms of sexual abuse do not cause physical injury, the investigation includes
a medical examination to document the occasional physical finding. The medical examination
affords an opportunity to provide psychological support for the child, and to reassure the child
and the parents that the child is physically unharmed.158
[A] Sperm, Seminal Fluid, and DNA
Presence on a child of spermatozoa is powerful evidence of sexual contact.159 Motile
sperm is capable of movement. Motility decreases quickly following ejaculation, and length of
motility depends in part on where sperm is found.160 Sperm that falls onto clothing or bedding
quickly looses motility. Inside the vagina or rectum, sperm can remain motile for a number of
hours. Nonmotile sperm is detectible for longer periods. Indeed, nonmotile sperm can be isolated
on cloth for months.161
158
Molly Curtin Berkoff, Adam J. Zolotor, Kathi L. Makoroff, Johathan D. Thackeray,
Robert A. Shapiro & Desmond K. Runyan, Has This Prepubertal Girl Been Sexually Abused?
300 Journal of the American Medical Association 2779-2792 (2008)(―a genital examination may
be viewed by some children as therapeutic.‖ p. 2784. ―While identifying trauma and infectious
diseases is extremely important and may require specific treatment, it also is important to reassure
a child and her family that she is healthy and that her genital examination is normal. A clinician‘s
assurance of a genital examination without evidence of trauma, and hence normal findings helps
begin a process of healing.‖ pp. 2790-2791); Martin A. Finkel, Physical Examination. In Martin
A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluation of Child Sexual Abuse: A Practical
Guide. pp. 53-103, at 92 (3rd ed. 2009)(American Academy of Pediatrics)(―The physical
examination should be therapeutic for the child, confirming his or her sense of physical intactness
and normality.‖p. 92).
159
Kathi Makoroff, Melissa Desai & Elizabeth Benzinger, The Role of Forensic Materials in
Sexual Abuse and Assault. In Robert M. Reece & Cindy W. Christian (Eds.), Child Abuse:
Medical Diagnosis & Management 377-387 (3rd ed. 2009)(American Academy of Pediatrics)(―In
the appropriate context, the identification of sperm is sufficient for diagnosis of sexual abuse.‖ p.
383); Vincent J. Palusci & Cindy W. Christian, Forensic Evidence in Child Sexual Abuse. In
Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171192 (3rd ed. 2009)(American Academy of Pediatrics)(―The identification of spermatozoa by
microscopy is considered diagnostic of sexual contact when identified by trained personnel.‖ p.
176).
160
Vincent J. Palusci & Cindy W. Christian, Forensic Evidence in Child Sexual Abuse. In
Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171192 (3rd ed. 2009)(American Academy of Pediatrics)(―Sperm motility decreases rapidly, and the
detection of motile sperm is the best indicator of recent ejaculation.‖ p. 176. ―The presence of
motile sperm in the vagina decreases rapidly.‖ p. 177. ―The average time for loss of sperm
motility in half of adult cases is 2 to 3 hours . . . .‖ p. 178.).
161
Medical Diagnosis & Management 377-387 (3rd ed. 2009)(American Academy of
Pediatrics)(―Sperm may also be found on dried secretions from clothing or bedding for months.‖
p. 383); Vincent J. Palusci & Cindy W. Christian, Forensic Evidence in Child Sexual Abuse. In
Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171192 (3rd ed. 2009)(American Academy of Pediatrics)(―Sperm is stable in dried secretions and can
be detected in clothing stains or on bedding for many months.‖ p. 178).
34
Seminal fluids that do not contain sperm nevertheless provide evidence of sexual
contact.162 Acid phosphatase is produced by the prostate gland and indicates ejaculation.163 Acid
phosphatase is detectable on cloth for many months.164 Men who have had a vasectomy produce
normal levels of acid phosphatase.165
In addition to acid phosphatase, P-30 anitgen is found in seminal fluid. ―The detection of
P-30 by enzyme-linked immunosorbent assay (ELISA) is a more specific and sensitive marker for
ejaculate than is acid phosphatse, but it is not universally assayed in forensic laboratories.‖
Vincent J. Palusci & Cindy W. Christian, Forensic Evidence in Child Sexual Abuse. In Martin A.
Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171-192, at 178
(3rd ed. 2009)(American Academy of Pediatrics).
163
Pediatrics)(―Acid phosphatase is an enzyme found in low concentrations (<50 IU/L) in vaginal
fluid and is also secreted by the prostate gland, achieving high concentrations (130-1,800 IU/L)
within seminal fluid. The presence of AP is not affected by vasectomy. Acid phosphatase persists
longer than sperm after sexual assault, and levels typically return to normal between 18 and 24
hours after ejaculation. Acid phosphatase is usually undectable in the vagina after 48 hours. The
enzyme is stable in dried secretions and closing and, in some instances, it can be detected after
months or even years.‖ p. 383); Vincent J. Palusci & Cindy W. Christian, Forensic Evidence in
Child Sexual Abuse. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of
Child Sexual Abuse 171-192 (3rd ed. 2009)(American Academy of Pediatrics)(―Although acid
phosphatase is also found in vaginal fluid and urine of women, it is found in much higher
concentrations in semen (130-1,800 IU/L) than in vaginal fluid (<50 IU/L). . . . The presence of
acid phosphatase is a less specific and less sensitive marker of ejaculate than is sperm, but acid
phosphatase has been noted to persist longer than sperm after sexual assault.‖ p. 178).
164
Pediatrics)(―The emzyme is stable in dried secretions and closing and, in some instances, it can
be detected after months or even year.‖p. 383); Vincent J. Palusci & Cindy W. Christian, Forensic
Evidence in Child Sexual Abuse. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical
Evaluations of Child Sexual Abuse 171-192 (3rd ed. 2009)(American Academy of
Pediatrics)(―Although acid phosphatase is also found in vaginal fluid and urine of women, it is
found in much higher concentrations in semen (130-1,800 IU/L) than in vaginal fluid (<50 IU/L).
Acid phosphatase is found in normal levels in vasectomized men. The presence of acid
phosphatase is a less specific and less sensitive marker of ejaculate than is sperm, but acid
phosphatase has been noted to persist longer than sperm after sexual assault.‖ p. 178.).
165
Pediatrics)(―The presence of AP is not affected by vasectomy.‖ p. 383); Vincent J. Palusci &
Cindy W. Christian, Forensic Evidence in Child Sexual Abuse. In Martin A. Finkel & Angelo P.
Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171-192 (3rd ed. 2009)(American
Academy of Pediatrics)(―Acid phosphatase is found in normal levels in vasectomized men.‖ p.
178).
162
35
DNA is a reliable method of placing an individual at a crime scene.166 DNA can be
isolated from sperm, saliva, blood, skin, and hair root.167
[B] Sexually Transmitted Infection
Sexually transmitted infection (STI)168 is documented in 1% to 5% of prepubertal victims
of sexual abuse.169 In sexually active adolescents it can be difficult to determine whether an STI is
due to abuse.170 The fact that the suspected perpetrator does not have a STI does not rule out the
suspect.171
Presence of certain sexually transmitted infections in prepubertal children provides strong
evidence of sexual abuse.172 So long as transmission from mother to baby at birth (perinatal
166
Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171192 at 179 (3rd ed. 2009)(American Academy of Pediatrics).
167
Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 171192 at 179 (3rd ed. 2009)(American Academy of Pediatrics).
168
The term sexually transmitted infection (STI) is replacing the older term sexually
transmitted disease (STD).
169
Allan R. DeJong, Sexually Transmitted Infections in Child Sexual Abuse. In Robert M.
Reece & Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis & Management 343-376
(3rd ed. 2009)(American Academy of Pediatrics)(―Sexually transmitted infections have been
detected in approximately 1% to 30% of children and adolescents examined for sexual abuse. The
actual risk of acquiring STIs by child sexual abuse victims is unknown. Several studies suggest
approximately 5% of prepubertal children evaluated for sexual abuse have an STI.‖ p. 343);
Deborah C. Stewart, Sexually Transmitted Infections in Child and Adolescent Sexual Assault and
Abuse. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual
Abuse 147-169, at 147 (3rd ed. 2009)(American Academy of Pediatrics).
170
(3rd ed. 2009)(American Academy of Pediatrics)(―The presence of an STI in the pubertal
adolescent may represent an infection acquired through abuse or prior sexual activity.‖ p. 343);
Deborah C. Stewart, Sexually Transmitted Infections in Child and Adolescent Sexual Assault and
Abuse. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of Child Sexual
Abuse 147-169 (3rd ed. 2009)(American Academy of Pediatrics).
171
(3rd ed. 2009)(American Academy of Pediatrics)(―the inability to document a specific STI in a
possible suspected perpetrator does not exclude the possibility that this individual was the source
of the child‘s infection.‖ p. 345. ―perpetrators who have taken commonly prescribed antibiotics
for another infection may eradicate the gonococci and have negative cultures when they are
subsequently screened as possible sources of the child‘s infection.‖ p. 348).
172
300 Journal of the American Medical Association 2779-2792 (2008)(―The presence of an STI
does not always means a child was sexually abused.‖ p. 2785); Allan R. DeJong, Sexually
Transmitted Infections in Child Sexual Abuse. In Robert M. Reece & Cindy W. Christian (Eds.),
Child Abuse: Medical Diagnosis & Management 343-376 (3rd ed. 2009)(American Academy of
36
transmission) is ruled out, the following STIs are persuasive evidence of sexual contact:
gonorrhea,173 syphilis,174 human immunodeficiency virus,175 and chalmydia trachomatis.176
Infection with gonorrhea requires body contact.177 Gonorrhea is found in the genitals,
rectum, and mouth of abused girls and boys.178 Similarly, chlamydia trachomatis is transmitted by
contact with infected material, and is found in the vagina, rectum, and mouth.179
Pediatrics)(―Sexually transmitted infections (STIs) are not commonly identified in prepubertal
children. Therefore, the presence of an STI in a child should raise concerns of sexual abuse.‖p.
343.); Deborah C. Stewart, Sexually Transmitted Infections in Child and Adolescent Sexual
Assault and Abuse. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluations of
Child Sexual Abuse 147-169 (3rd ed. 2009)(American Academy of Pediatrics).
173
Deborah C. Stewart, Sexually Transmitted Infections in Child and Adolescent Sexual
Child Sexual Abuse 147-169, at 149 (3rd ed. 2009)(American Academy of Pediatrics)(―In all
prepubertal children beyond the newborn period and in all non-sexually active adolescents, a
gonococcal infection is usually diagnostic of sexual abuse.‖ p. 149).
174
(3rd ed. 2009)(American Academy of Pediatrics)(―Syphilis is detected in 0.0% to 1.8% of
reported victims of sexual abuse.‖ p. 353. ―Prepubertal children with primary or secondary stages
of syphilis occurring beyond early infancy should be presumed to be victims of sexual abuse.‖ p.
354).
175
Reece & Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis & Management 343-376, at
344 (3rd ed. 2009)(American Academy of Pediatrics).
176
344 (3rd ed. 2009)(American Academy of Pediatrics).
See Bridgeman v. State, 2010 WL 4294219 (Miss. Ct. App. 2010)(child had chalmydia,
―which Dr. Bacon described as ‗primarily‘ a sexually transmitted disease.‖).
177
345 (3rd ed. 2009)(American Academy of Pediatrics)(the incubation period for gonorrhea is 2 to 7
days. ―Reported rates of gonococcal infection range from 1% to 30% among sexually abused
children. The presence in prepubertal children is probably less than 2%, and probably less than
7% among pubertal children routinely cultured because of suspected sexual abuse.‖ pp. 345-346.
―Gonococci can survive up to 24 hours on fomites (toilet seats, towels) in moist purulent
secretions. This fact raises the possibility of nonsexual transmission in some cases, although clear
documentation of cases of nonsexual transmission is not available.‖ p. 349); Deborah C. Stewart,
Sexually Transmitted Infections in Child and Adolescent Sexual Assault and Abuse. In Martin A.
(3rd ed. 2009)(American Academy of Pediatrics)(―In all prepubertal children beyond the newborn
period and in all non-sexually active adolescents, a gonococcal infection is usually diagnostic of
sexual abuse.‖ p. 149).
See Steadman v. State, 280 S.W.3d 242 (Tex. Crim. App. 2009)(four-year-old had
gonorrhea; so did defendant).
178
345 (3rd ed. 2009)(American Academy of Pediatrics)(the incubation period for gonorrhea is 2 to 7
days. ―Reported rates of gonococcal infection range from 1% to 30% among sexually abused
37
The following STIs raise suspicions of sexual abuse: Trichomonas vaginalis,
Condylomata acuminata (warts),180 and genital herpes simplex.181
[C] Genital and Anal Examination
Frequently, sexual touching causes no injury.182 When injury does occur, it is often
superficial and heals quickly, leaving no residua detectable on physical examination.183 Fondling
children. The presence in prepubertal children is probably less than 2%, and probably less than
7% among pubertal children routinely cultured because of suspected sexual abuse.‖ pp. 345-346.
―Gonococci can survive up to 24 hours on fomites (toilet seats, towels) in moist purulent
secretions. This fact raises the possibility of nonsexual transmission in some cases, although clear
documentation of cases of nonsexual transmission is not available.‖ p. 349); Deborah C. Stewart,
Sexually Transmitted Infections in Child and Adolescent Sexual Assault and Abuse. In Martin A.
(3rd ed. 2009)(American Academy of Pediatrics).
See Steadman v. State, 2009 WL 838550 (Tex. Crim. App. 2009)(four-year-old had
gonorrhea; so did defendant).
179
(3rd ed. 2009)(American Academy of Pediatrics)(―Chlamydial vaginal infections beyond the first
year of life are strongly associated with sexual contact when proper methods are sued for
detecting the infection and sexual abuse.‖ p. 351); Deborah C. Stewart, Sexually Transmitted
Infections in Child and Adolescent Sexual Assault and Abuse. In Martin A. Finkel & Angelo P.
Giardino (Eds.), Medical Evaluations of Child Sexual Abuse 147-169, at 153, 155 (3rd ed.
See Kelley v. State, 2009 WL 857506 (Ark. 2009)(9-year-old had Chlamydia; ―Dr.
Esquival testified that Chlamydia is spread either ‗by active intercourse or by very close genital to
genital contact.‘‖); State v. Thomas, 36 So.3d 1178 (La. Ct. App. 2010)(child had chlamydia).
180
State v. Johnson, 652 So.2d 1069 (La. Ct. App. 1995)(11-year-old boy ―had venereal warts
ringing his anus.‖ p. 1070); State v. Perdue, 317 S.W.3d 645 (Mo. Ct. App. 2010)(child had
genital warts).
181
Deborah C. Stewart, Sexually Transmitted Infections in Child and Adolescent Sexual
Child Sexual Abuse 147-169 (3rd ed. 2009)(American Academy of Pediatrics).
182
United States v. Charley, 189 F.3d 1251 (10th Cir. 1999)(10- and 13-year-old victims
described repeated genital and anal contact by defendant with his finger and penis; ―A physical
examination showed no evidence of abuse. Both girls had intact hymens, and the anal and genital
areas appeared normal with no visible bleeding, bruising, scarring, tears or discharge. According
to Dr. Junkins, this circumstance was not inconsistent with sexual abuse since children‘s tissues
heal quickly, although there may be residual scarring.‖ p. 1256).
183
300 Journal of the American Medical Association 2779-2792 (2008)(―the hymen and surrounding
tissues heal rapidly, often leaving no signs of healed trauma.‖ p. 2780); Martin A. Finkel,
Physical Examination. In Martin A. Finkel & Angelo P. Giardino (Eds.), Medical Evaluation of
Child Sexual Abuse: A Practical Guide 53-103 (3rd ed. 2009)(American Academy of
Pediatrics)(―Most injuries that do occur are superficial and heal without residual findings because
38
typically causes no injury, and any irritation due to friction quickly resolves. Rubbing a penis or
finger back and forth across a child‘s genitals or between the buttocks can cause irritation and
redness (erythema), but the irritation soon disappears.184 Examining a child less than seventy-two
hours after abuse increases the likelihood of finding injury.185 In the run of cases, however,
examination takes place long after abuse, and the child has a ―normal‖ physical examination.186
Except in rare circumstances, girls have a hymen, which is a mucous membrane located
just inside the vagina.187 Prior to puberty, the hymen is quite sensitive to touch.188 As girls reach
puberty, the hymen alters due to estrogen, and becomes less sensitive to touch.189 The hymen is
most children disclose long after the last contact and are well beyond the 2 to 96 hours necessary
for superficial trauma to resolve.‖ p. 78).
See People v. Vang, 171 Cal. App. 4th 1120, 90 Cal. Rptr. 3d 328 (2009)(expert testified
that child had very little hymen from 5:00 to 7:00, and this was consistent with penetration. The
expert could not date the injury ―because even injuries as significant as this heal within three
weeks.‖ 90 Cal. Rptr. 3d at 331).
184
185
300 Journal of the American Medical Association 2779-2792 (2008)(―Among children who
recently have been sexually abused (≤ 72 hours) and have had forensic evidence collected, up to
25% may have evidence of acute anogenital injury. . . . When looking at the prevalence of
significant findings in non-acute examinations, case-series reports note that 95% of children with
a history of sexual abuse will have unremarkable physical examinations.‖ p. 2780).
186
300 Journal of the American Medical Association 2779-2792 (2008)(―A completely normal
examination does not exclude abuse and is the most frequent examination finding in children who
have been sexually abused.‖ p. 2780.).
187
2009)(American Academy of Pediatrics); Martin A. Finkel, Medical Aspects of Prepubertal
Sexual Abuse. In Robert M. Reece & Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis
& Management (3rd ed. 2009)(American Academy of Pediatrics)(―If the genitourinary track is
normally developed, the hymen is present.‖ p. 291).
188
300 Journal of the American Medical Association 2779-2792 (2008)(―Avoiding direct contact
with the hymenal tissue is important because this is an area very sensitive to touch in most
prepubertal girls.‖ p. 2784); Martin A. Finkel, Medical Aspects of Prepubertal Sexual Abuse. In
Robert M. Reece & Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis & Management
(3rd ed. 2009)(American Academy of Pediatrics)(―The membrane is innervated and, in the
prepubertal child, the hymen can be exquisitely sensitive to touch.‖ p. 291).
189
Medical Evaluation of Child Sexual Abuse: A Practical Guide 53-103 (3rd ed. 2009)(American
Academy of Pediatrics)(―In puberty, the hymenal membrane undergoes significant changes that
are secondary to estrogen. Estrogen results in thickening of the hymenal membrane, increased
elasticity, and decreased pain sensitivity.‖ p. 62).
39
not a drum like structure completely covering the vagina.190 Rather, the hymen contains an
orifice. The shape of the hymen varies among children.191 It is a misconception that all females
bleed when they first have sexual intercourse.192
It was once thought that the size of the hymenal orifice could provide evidence of
penetration, but it is now understood that the size of the opening varies from child to child.193
Indeed, in the same child the size of the orifice can change as the child changes position.194
Although the size of the hymenal orifice is not diagnostic, acute or chronic trauma to the hymen
or other genital structures can provide evidence of sexual assault.195
190
Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis & Management (3rd ed.
2009)(American Academy of Pediatrics)(―Many nonmedical professionals have the perception
that the hymen is an impermeable membrane, and any opening is abnormal. An imperforate
hymen is the only anatomical variant of hymenal configurations in which no opening is present.‖
p. 291).
191
2009)(American Academy of Pediatrics)(―The appearance of the hymenal membrane is quite
variable.‖ p. 291).
192
Academy of Pediatrics)(―The common perception that women bleed during their first coitus, thus
confirming their virginal status, is incorrect.‖ p. 86. Some women bleed and some don‘t).
193
300 Journal of the American Medical Association 2779-2792 (2008)(―We caution that the
findings for the diameter of the hymenal opening may lack precision and therefore are not
clinically useful.‖ p. 2790); Martin A. Finkel, Physical Examination. In Martin A. Finkel &
Angelo P. Giardino (Eds.), Medical Evaluation of Child Sexual Abuse: A Practical Guide 53-103
(3rd ed. 2009)(American Academy of Pediatrics)(―The diameter of the hymenal orifice alone
should not be used as a screening test for the presence of sexual abuse.‖ p. 90).
194
Academy of Pediatrics)(―The ‗normal‘ size of the hymenal orifice varies with age, body habitus,
and pubertal development. The size of the orifice may vary during the examination depending on
positioning (supine frog-leg vs knee-chest), the state of relaxation of the patient, and examination
technique. Clearly, there is a range of normal variability. The transverse diameter of the hymenal
orifice alone cannot be relied on as a sole diagnostic finding of vaginal penetration.‖ p. 62. ―The
orifice diameter may vary considerably, depending on the age of the child, the position in which
the child is examined, the degree of relaxation, and the amount of traction on the labia during the
examination. The transverse diameter alone is rarely sufficient to determine whether a child has
or has not been sexually abused and should not be used as the sole criterion for such a
determination.‖ p. 75 ); Martin A. Finkel, Medical Aspects of Prepubertal Sexual Abuse. In
Robert M. Reece & Cindy W. Christian (Eds.), Child Abuse: Medical Diagnosis & Management
269-319 (3rd ed. 2009)(American Academy of Pediatrics)(―When a child is examined in the kneechest position, the appearance of the hymen may be quite different.‖ p. 281. ―Other variables that
may account for a changing appearance of the hymenal orifice are the state of relaxation and
degree of labial traction and separation.‖ p. 282).
195
40
In Eze v. Senkowski,196 the Second Circuit considered the habeas corpus petition of a
defendant convicted of child sexual abuse. At trial, the prosecutor offered expert medical
testimony. The expert based his testimony in part on measurement of the hymenal opening.
Defense counsel did not cross-examine the expert about the controversial nature of reliance on the
size of the hymenal opening. Nor did defense counsel offer expert testimony to rebut the
prosecution's expert. For these and other reasons that raised serious questions about the
effectiveness of defendant's counsel, the Second Circuit vacated the District Court's denial of
habeas corpus relief, and remanded for further proceedings. The Second Circuit emphasized that
when the prosecution relies on expert medical testimony, the defense should investigate pertinent
medical literature for possible weaknesses in the expert's testimony. Moreover, defense counsel
should consider consulting an expert to discuss approaches to cross-examining the prosecution's
expert. Finally, the defense should evaluate the possible benefits of offering medical testimony of
its own.
When medical professionals describe injury to the hymen, they locate the injury by
reference to the hands of a clock.197 With the child lying on her back (supine position), and
viewing the hymen from the child‘s feet, 12 o‘clock is at the top; 6 at the bottom (posterior).
Thus, an injury at the 2 o‘clock position is near the top of the hymen, slightly to the right.
Penetration of a child‘s vagina by a finger, penis, or object may cause serious injury or no
damage at all,198 depending on the amount of force, use of lubricant, the child‘s age,199 and the
size of the penetrating object.200 If the child is prepubertal, penile penetration is likely to injure
tissue and, in some cases, damage the hymen and/or leave scar tissue.201 Penetration into the
genitals can be slight and need not reach the hymen.
2009)(American Academy of Pediatrics)(Finkel describes factors that can cause injury, including:
amount of force used, size of object inserted in child, use of lubrication, and child‘s position
during the act).
196
321 F.3d 110 (2d Cir. 2003). See also Gerston v. Senkowski, 299 F. Supp. 2d 84
(E.D.N.Y. 2004).
197
People v. Vang, 171 Cal. App. 4th 1120, 90 Cal. Rptr. 3d 328 (2009)(expert testified that
child had very little hymen from 5:00 to 7:00, and this was consistent with penetration.).
198
300 Journal of the American Medical Association 2779-2792 (2008)(―penetration may have
occurred without causing physical injury.‖p. 2780).
199
Academy of Pediatrics)(―In the pubertal child who experiences vaginal penetration, the potential
to identify diagnostic findings is limited . . . .‖ p. 86).
200
Academy of Pediatrics)(―Depending on the child‘s age, penetration of the vagina by a penis may
or may not lead to significant findings.‖ p. 85. ―The elasticity of the membrane in the pubertal
child may afford the intromission of a penis with surprisingly little residua.‖ p. 86).
201
Academy of Pediatrics)(―It is expected that the introduction of an adult penis into a prepubertal
child‘s vagina should produce acute and obvious signs of trauma and result in chronic residua
such as transections and healing scar tissue. This is true if the contact is acute and forceful.‖ p.
85).
41
Some sexually abused girls have a transection (tear) through the entire width of the
hymen.202 A complete transection between 4 and 8 o‘clock in a prepubertal child is fairly strong
evidence of penetration.203 Some prepubertal children have a notch that does not extend the entire
width of the hymen.204 A deep notch is probative, albeit not diagnostic, of penetration.205
Fellatio typically causes no injury. If force is used, however, there may be tiny red dots
called petechiae on the top and back of the child‘s mouth.206 Petechiae result when capillaries are
ruptured.207 Inside the lip is a bit of tissue called the frenulum that connects the lip to the gum. If
a child‘s lip is forced away from the child‘s mouth, the frenulum can be torn.208
202
Academy of Pediatrics)(―However, rather dramatic acute-non-transection injuries may heal with
surprisingly little residua.‖ p. 86).
See State v. Spencer, 339 Mont. 227, 169 P.3d 384, 387 (2007)(―a full transaction of S.S.‘s
hymen, consistent with a penetrating injury.‖).
203
300 Journal of the American Medical Association 2779-2792 (2008)(―A transaction of the
posterior hymen between 4 and 8 o‘clock in prepubertal girls suffests genital penetrating trauma;
however, the presence of this finding is not confirmatory of sexual abuse. Posterior hymenal
findings including transections between 4 and 8 o‘clock, deep notches, and perforations were not
seen in studies of prepubertal girls without a history genital trauma . . . .‖ p. 2790).
204
State v. Streater, 673 S.E.2d 365 (N.C. Ct. App. 2009)(deep hymenal notches at 10:00 and
2:00).
205
300 Journal of the American Medical Association 2779-2792 (2008)(―Posterior hymenal findings
including transections between 4 and 8 o‘clock, deep notches, and perforations were not seen in
studies of prepubertal girls without a history of gential trauma from sexual abuse included in this
systematic review. Therefore, one can conclude that the posterior hymenal findings of
transections, deep notches, and perforations are extremely infrequent findings among children
without a history of genital trauma from sexual abuse or other means. Current guidelines suggest
deep notches are supportive of a disclosure of sexual abuse. Without a disclosure of sexual abuse,
interpretation of deep notches is considered an indeterminate finding that may require further
evaluation. While deep notches of the posterior hymen were not found in prepubertal girls
without a history of sexual abuse, the finding also is uncommon among sexually abused children.
‖p. 2790.).
206
207
Certain medical conditions can cause petechiae.
208
2009)(American Academy of Pediatrics); Sabine Maguire, Which Injuries May Indicate Child
Abuse?, ___ Archives of Diseases of Childhood Educ. Pract. Ed. ___ (2009)(accidents can tear
the frenulum).
See People v. Jennings, 50 Cal.4th 616, 237 P.3d 474, 114 Cal. Rptr. 3d 133 (2010)(physical
abuse case; among many injuries, child had ―a lacerated oral frenulum‖); People v. Valdez, 27
Cal. 4th 778, 782, 42 P.3d 511, 118 Cal. Rptr. 2d 3 (2002)(fatal shaken baby case; ―Thalia had
42
Penetration of the anus may or may not cause injury.209 The anal sphincter is elastic and
is designed to open wide enough to pass stool that is as large as the average penis.210 It is not
surprising that a finger or a penis can penetrate the anus without causing injury, particularly when
lubrication is used.211 Rubbing a finger or penis between the buttocks cheeks may cause
temporary erythema (redness due to irritation), but erythema alone is not probative of sexual
abuse.212
When a child has acute lacerating or impaling injury to the genitals or rectum, accident
must be ruled out.213 In girls, accidental straddle injury can occur when the child falls onto an
object like the horizontal bar of a bicycle or playground equipment.214 Accidental injury is
old injuries, such as a split upper and lower frenulum, perhaps resulting from a bottle or other
object being force into her mouth.‖); People v. Rolon, 160 Cal. App. 4th 1206 (2008)(fatal
physical abuse case; frenulum torn); State v. Edwin M., 124 Conn. App. 707, 6 A.3d 124
(2010)(baby was sexually abused and had torn frenulum).
209
Academy of Pediatrics)(―Controversy exists concerning the significance of anal dilation in
response to traction. Rectal dilation should be interpreted cautiously when observed in isolation.‖
p. 76).
210
2009)(American Academy of Pediatrics)(―The anal sphincter is anatomically designed to contract
and pass stool on a routine basis. Children can pass, by parental description, surprisingly largediameter stools without problems. Anal fissures can be seen following passage of a largediameter stool, as commonly associated with constipation. Fissures can also be the result of the
introduction of a foreign body, such as a finger, penis, or other object. Anal fissures are a nonspecific finding of superficial mucosal trauma. The specificity of a fissure increases with a
corroborative history.‖ p. 285).
211
212
2009)(American Academy of Pediatrics)(―The anal and perianal tissues are carefully examined
for both acute and healed signs of trauma. Acute signs of trauma may be evidence as superficial
abrasions and chafing of the anal verge and the tissues that form the gluteal cleft. Perianal redness
is frequently observed in non-abused and abused children and, thus, it is a nonspecific finding.‖
pp. 284-285).
213
214
2009)(American Academy of Pediatrics); Nancy D. Kellogg & Lori Frasier, Conditions Mistaken
for Child Sexual Abuse. In Robert M. Reece & Cindy W. Christian (Eds.), Child Abuse: Medical
Diagnosis & Management 389-425 (3rd ed. 2009)(American Academy of Pediatrics)(―The leading
cause was straddle injury on such objects as bicycle bars, beds, fences, concrete walls, and
playground equipment. Other causes of accidental perianal injury were impalement, motor
vehicle crashes, zipper injuries, and animal bites.‖ pp. 398-399).
43
unlikely to affect the hymen, which is recessed inside the child‘s body.215 Similarly, an accident is
unlikely to lacerate the rectum, which is protected by the buttocks.216
In boys, findings of sexual abuse outside the anal area are rare.217 Genital injuries in boys
include bruises of the penis or perineum, tears of the foreskin, and bites.218
A colposcope is a medical instrument that allows a physician to inspect the genitalia or anus
with a strong light source and varying degrees of magnification.219 The colposcope is binocular,
allowing depth perception. A still or video camera is attached to the colposcope so physical
findings can be documented. The colposcope is not a novel scientific technique, and is not subject
to Frye or Daubert.220
Photographs taken with a colposcope may be used to illustrate medical testimony.221 In State
v. Noltie,222 the Washington Supreme Court ruled that colposcopic photographs are admissible,
writing, ―Accurate photos are admissible if their probative value outweighs any prejudicial effect.
Here, the photos were highly relevant, and no prejudice has been demonstrated.‖223
See Viers v. State, 303 Ga. App. 387, 693 S.E.2d 526 (2010)(defense argued straddle injury).
215
See People v. Vang, 171 Cal. App. 4th 1120, 90 Cal. Rptr. 3d 328 (2009)(expert testified that
child had very little hymen from 5:00 to 7:00, and this was consistent with penetration; expert
testified this injury ―could not have been caused by an injury from a bicycle accident. 90 Cal.
Rptr. 3d at 331).
216
217
Martin A. Finkel, Medical Issues in Child Sexual Abuse. In John E.B. Myers (Ed.), The
APSAC Handbook on Child Maltreatment 253-266 (3d ed. 2011)(Sage); Martin A. Finkel,
Child Sexual Abuse: A Practical Guide 53-103, at 91 (3rd ed. 2009)(American Academy of
Pediatrics).
218
Pediatrics).
219
Pediatrics).
220
People v. Pitts, 223 Cal. App. 3d 606, 273 Cal. Rptr. 757 (1990); People v. Mendibles, 199
Cal. App. 3d 1277, 245 Cal. Rptr. 553 (1988); State v. Noltie, 116 Wash. 2d 831, 809 P.2d 190,
201-202 (1991).
221
State v. Herrmann, 679 N.W.2d 503 (S.D. 2004)(still photos taken from videotape of
genital and anal exams showing injuries admissible to illustrate doctor's testimony about injury
and penetration); State v. William M., 225 W. Va. 256, 692 S.E.2d 299 (2010); State v. Noltie,
116 Wash. 2d 831, 809 P.2d 190 (1991).
222
116 Wash. 2d 831, 809 P.2d 190 (1991).
223
809 P.2d at 202-203.
44
[D] Penetration
Penetration is an element of rape as well as other sex offenses.224 Proof of penetration is
discussed in § 11.6.
§6.09 PSYCHOLOGICAL EVIDENCE OF SEXUAL
ABUSE: INTRODUCTION
In the effort to prove sexual abuse, attorneys sometimes offer evidence regarding
psychological symptoms observed in sexually abused children. In most cases psychological
evidence is presented by experts. In some cases, lay witnesses (e.g., parents) describe changes in
a child's behavior.225
Before delving into expert testimony describing psychological symptoms, it is important to
note that many prosecutors prefer not to offer such testimony. As soon as the prosecutor offers
expert psychological testimony to prove sexual abuse, the defense is entitled to respond in kind,
and the battle of the experts is engaged.226 Often, the prosecutor prefers to rest the case on the
child‘s testimony and evidence that corroborates the child, eschewing expert psychological
testimony.
There is no psychological symptom or set of symptoms observed in all or even a majority of
sexually abused children.227 There is no psychological symptom that is unique to sexually abused
224
Cal. Penal Code §§ 261 (rape); 286 (sodomy); 289 (unlawful sexual penetration).
See In re E.H., 967 A.2d 1270 (D.C. 2009).
225
United States v. Reddest, 512 F.3d 1067 (8th Cir. 2008); Commonwealth v. Arana, 453
Mass. 214, 901 N.E.2d 99 (2009)(―Evidence of a victim's state of mind or behavior following a
crime has long been admissible if relevant to a contested issue in a case. The jury were keenly
aware, at this point in the trial, that Betty and Marie's parents had filed a civil lawsuit against the
defendant. In the circumstances of this case, the challenged testimony about Betty's demeanor
was admissible, not as first complaint evidence but as evidence relevant to a highly contested
issue, namely, whether Betty's accusations were fabricated to provide a basis for the civil lawsuit
that would shortly be brought by her parents against the defendant.‖); See Schmidt v. State, 29
P.3d 76, 80 (Wyo. 2001) (child's father ―described her dramatic change in mood and behavior
following the June 19th incident, including fear of reprisal from Schmidt‖).
226
Girardot v. United States, 996 A.2d 341 (D.C. 2010).
227
State v. Rimmasch, 775 P.2d 388, 401 (Utah 1989)(―children may have widely varying
reactions to abuse, so that ‗typicality‘ is hard to determine‖).
See Mark D. Everson & Kathleen Coulborn Faller, Base Rates, Multiple Indicators, and
Comprehensive Forensic Assessments: Why Sexualized Behavior Still Counts in Forensic Child
Sexual Abuse Evaluations, Journal of Child Sexual Abuse (in press); David Faust, Ana J. Bridges,
& David C. Ahern, Methods for the Identification of Sexually Abused Children. In Kathryn
Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations, pp. 3-19
(2009) (John Wiley) (―A perfectly differentiating indicator would be uniquely associated with
child sexual abuse—it would occur only if a child had been sexually abused and would never
occur for other reasons—but such indicators are extremely rare in psychology.‖ p. 7); Jessica
Gurley, Kathryn Kuehnle, & H.D. Kirkpatrick, The Continuum of Children's Sexual Behavior:
Discriminative Categories and the Need for Public Policy Change. In Kathryn Kuehnle & Mary
Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations, pp. 129-150, at 129 (2009)
45
children.228 Faust, Bridges, and Ahern observe, ―A perfectly differentiating indicator would be
uniquely associated with child sexual abuse—it would occur only if a child has been sexually
abused and would never occur for other reasons—but such indicators are extremely rare in
psychology.‖229 London and colleagues add, ―[T]here are no unique psychological symptoms
specific to sexual abuse.‖230 Everson and Faller conclude, ―[F]orensic evaluators have no magic
markers or perfect diagnostic indicators. Specifically, there is no behavior, sign or symptom that
is inclusive of all sexually abused children, while being exclusive of all non-abused children. Nor
will there ever be such a marker, because the impact of sexual abuse is far from uniform.‖231
There is no psychological test that detects sexual abuse.232 The Child Sexual Behavior
(John Wiley) (―One of the most important findings from the past several decades of research
addressing the effects of child sexual abuse (CSA) is that no single sign or symptom, including
sexualized behavior, characterizes the majority of sexually abused children.‖); Kamala London,
Maggie Bruck, Stephen J. Ceci, & Daniel W. Shuman, Disclosure of Child Sexual Abuse: A
Review of the Contemporary Empirical Literature. In Margaret-Ellen Pipe, Michael E. Lamb,
Yael Orbach, & Ann-Christin Cederborg (Eds.), Child Sexual Abuse: Disclosure, Delay, and
Denial, pp. 11-40 (2007) (Lawrence Erlbaum) (―there are no unique psychological symptoms
specific to sexual abuse.‖ p. 11); Katarina Finnila-Tuohimaa, Pekka Santtila, Linds Bjornberg,
Niina Hakala, Pekka Niemi, & Kenneth Sandnabba, Attitudes Related to Child Sexual Abuse:
Scale Construction and Explorative Study Among Psychologists, 49 Scandinavian Journal of
Psychology 311-323 (2008) (―no symptom profile can be considered definitive proof of CSA.‖ p.
311.); Sonja N. Brilleslijper-Kater, William N. Friedrich, & David L. Corwin, Sexual Knowledge
Challenges, 28 Child Abuse & Neglect 1007-1017, at 1009 (2004) (―The literature suggests that
sexual abuse is associated with a variety of indicators. Few of these indicators discriminate
between victims of sexual abuse and other children who might present to a clinician or protective
services agency. Age-inappropriate sexual behavior and symptoms of PTSD are considered to be
the most commonly identified symptoms of sexual abuse. However, the diagnosis of PTSD is
difficult with preschoolers, and sexual behavior is associated with variables separate from sexual
abuse, including family sexuality, life stress, and physical abuse.‖); Lois B. Oberlander,
Psycholegal Issues in Child Sexual Abuse Evaluations: A Survey of Forensic Mental Health
Professionals, 19 Child Abuse & Neglect 475-490, at 481 (1995) (―In general, however, it has
been difficult to isolate pathognomonic psychological reactions to sexual abuse.‖).
228
David Faust, Ana J. Bridges & David C. Ahern, Methods for the Identification of Sexually
Abused Children: Issues and Needed Features for Abuse Indicators. In Kathryn Kuehnle & Mary
Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations 3-19 (2009).
229
Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations 3-19, at 7 (2009).
230
Kamala London, Maggie Bruck, Stephen J. Ceci & Daniel W. Shuman, Disclosure of
Child Sexual Abuse: A Review of the Contemporary Empirical Literature. In Margaret-Ellen
Pipe, Michael E. Lamb, Yael Orbach & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay & Denial 11-40, at 11 (2007)(Lawrence Erlbaum).
231
Mark D. Everson & Kathleen Coulborn Faller, Base Rates, Multiple Indicators, and
Sexual Abuse Evaluations, Journal of Child Sexual Abuse (in press).
232
See Gail S. Goodman, R.E. Emery, & Jeffrey J. Haugaard, Developmental Psychology and
Law: The Cases of Divorce, Child Maltreatment, Foster Care, and Adoption. In I.E. Sigel & K.A.
Renninger (Eds.), Handbook of Child Psychology: Volume 4. Child Psychology in Practice 775-
46
Inventory (CSBI), developed by Friedrich, is a paper and pencil form filled out by a parent or
caretaker documenting a child's sexual behaviors over the previous six months.233 The CSBI is a
scientifically rigorous psychological tool and is a valuable component of a clinical assessment of
possible sexual abuse. The CSBI is not, however, a test for sexual abuse.
There is no Sexually Abused Child Syndrome that detects or diagnoses sexual abuse.234
Kendall-Tackett, Williams, and Finkelhor reviewed the literature on the impact of sexual abuse
and concluded, ―The first and perhaps most important implication is the apparent lack of evidence
for a conspicuous syndrome in children who have been sexually abused. The evidence against
such a syndrome includes the variety of symptoms children manifest and the absence of one
particular symptom in a large majority of children.‖235 Many sexually abused children
demonstrate no outward behavioral manifestations of abuse.236
The Child Sexual Abuse Accommodation Syndrome, discussed in §§ 6.16[B], 6.18, does not
detect or diagnose sexual abuse.
§ 6.10 PSYCHOLOGICAL SYMPTOMS OBSERVED
IN ABUSED AND NON-ABUSED CHILDREN
Many psychological symptoms are observed in sexually abused children.237 Stress-related
874, at 821 (1998) (―Unfortunately, there is as yet no generally accepted, scientifically valid way
to determine whether an abuse report is true or false.‖).
233
See William N. Friedrich, Child Sexual Behavior Inventory (1997) (Psychological
Assessment Resources: Odessa, Fla.).
234
See Esther Deblinger, Julie Lippmannn, & Robert Steer, Sexually Abused Children
Suffering Posttraumatic Stress Symptoms: Initial Treatment Outcome Findings, 1 Child
Maltreatment 310-321, at 310 (1996) (―Approximately one third of sexually abused children
demonstrate no apparent symptomatology, and no single symptom or syndrome is characteristic
of the majority of sexually abused children.‖); Michael E. Lamb, The Investigation of Child
Sexual Abuse: An Interdisciplinary Consensus Statement, 18 Child Abuse & Neglect 1021-1028,
1023 (1994) (―No specific behavioral syndromes characterize victims of sexual abuse. Sexual
abuse involves a wide range of possible behaviors that appear to have widely varying effects on
its victims. The absence of any sexualized behavior does not confirm that sexual abuse did not
take place any more than the presence of sexualized behavior conclusively demonstrates that
sexual abuse occurred; rather, both pieces of information affect the level of suspicion concerning
the child's possible experiences and should serve to promote careful and nonsuggestive
investigation.‖).
235
Kathleen Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact of Sexual
Abuse on Children: A Review and Synthesis of Recent Empirical Studies, 113 Psychological
Bulletin 164-180, at 173 (1993).
236
See Sonja N. Brilleslijper-Kater, William N. Friedrich, & David L. Corwin, Sexual
Knowledge and Emotional Reaction as Indicators of Sexual Abuse in Young Children: Theory
and Research Challenges, 28 Child Abuse & Neglect 1007-1017 (2004). See also §6.14.
237
John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation: Consensus and
Confusion, 14 UC Davis Journal of Juvenile Law & Policy 1-57 (2010); Debra A. Poole &
Michele A. Wolfe, Child Development: Normative Sexual and Nonsexual Behaviors That May
Be Confused with Symptoms of Sexual Abuse. In Kathryn Kuehnle & Mary Connell (Eds.), The
Evaluation of Child Sexual Abuse Allegations, pp. 101-128 (2009) (John Wiley) (―Many of the
problems discussed in this chapter—including sleep difficulties, toileting issues, and physical
47
symptoms are common, including sleep disturbance, nightmares, regression, withdrawal from
usual activities, nervousness, and clinginess.238 Some sexually abused children are depressed.
Yet, stress-related symptoms are not unique to sexual abuse. Witnessing intimate partner
violence, for example, causes symptoms in children.239 Children who are neglected but not
sexually abused often have mental health issues.240 Family disorganization, poverty, and
substance/alcohol abuse are stressful for children and adults. Some children growing up in
―normal‖ homes are anxious and symptomatic, and some psychological symptoms (e.g.,
nightmares) are so common among non-maltreated children that they are a normal part of
growing up.
Given that stress-related symptoms are observed in non-abused as well as abused children,
the question is: Does the presence in a child of symptoms seen in non-abused and abused children
complaints—can be prompted by sexual abuse but are more often associated with normal
developmental issues, medical problems, and disruptions in family routines or other stressors.
These behavioral problems are not useful indicators of sexual abuse by themselves because they
occur so frequently in nonabused children, but also because the circumstances surrounding false
allegations can prompt a wide variety of stress-related reactions that mimic reactions to abuse.‖ p.
116); Kamala London, Maggie Bruck, Stephen J. Ceci & Daniel W. Shuman, Disclosure of Child
Sexual Abuse: A Review of the Contemporary Empirical Literature. In Margaret-Ellen Pipe,
Michael E. Lamb, Yael Orbach & Ann-Christin Cederborg (Eds.), Child Sexual Abuse:
Disclosure, Delay & Denial 11-40 (2007) (Mahwah, NJ: Lawrence Erlbaum) (―there are no
unique psychological symptoms specific to sexual abuse.‖).
See §6.03 for discussion of the short- and long-term effects of sexual abuse.
See also Hobgood v. State, 926 So. 2d 847, 855-856 (Miss. 2006) (5-year-old victim of anal
rape; child's psychotherapist described various behaviors demonstrated by child, including sleep
disturbance, self-harm, aggression, and excessive touching of own genitals; approving such
testimony, the Supreme Court wrote, ―Goodson stands for the principle that experts may not
testify as to a syndrome commonly associated with children who have been sexually abused, but
can testify as to common characteristics of sexually abused children. When an expert testifies as
to substantive evidence of abuse via a description of behaviors seen in sexually abused children,
the expert is not describing a syndrome. This Court has held that expert testimony about common
characteristics is admissible unless its probative value is substantially outweighed by the potential
for unfair prejudice or confusion of the jury. Detotto was within her area of expertise when she
described the common characteristics of sexually abused children. She testified directly as to the
victim's psychological condition. Detotto did not testify as to a syndrome; rather she spoke
directly about the victim's behavior. The testimony was admitted as substantive evidence of
Hobgood's guilt and it was not unfairly prejudicial or confusion to the jury.‖);
238
See Kathleen A. Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact of
Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Studies, 113
Psychological Bulletin 164 (1993); Malgorzata Ligezinska, Philip Firestone, Ian G. Manion,
Joanne McIntyre, & George Wells, Children's Emotional and Behavioral Reactions Following the
Disclosure of Extrafamilial Sexual Abuse: Initial Effects, 20 Child Abuse & Neglect 111-125, at
119 (1996)(―Overall, the results of the present study support previous research which has shown
that sexually abused children experience negative effects and suffer emotional and behavioral
difficulties, at least in the short term, following disclosure of extrafamilial sexual abuse.‖).
239
Sandra A. Graham-Bermann & Kathryn H. Howell, Child Maltreatment in the Context of
Intimate Partner Violence. In John E.B. Myers (Ed.), The APSAC Handbook on Child
240
Howard Dubowitz (Ed.), Neglected Children: Research, Practice and Policy
(1999)(Sage).
48
provide evidence of sexual abuse? In some cases the answer is yes, but arriving at that answer is
complicated and requires understanding of two issues: (1) How often is the symptom observed in
sexually abused and non-abused children? and (2) What are the populations of sexually abused
and non-abused children?
[A] How Often is the Symptom Seen in Sexually Abused and
Non-Abused Children?
If a symptom is seen more often in abused than non-abused children, the symptom may
have probative value.241 The more often the symptom is observed in abused children and the less
often in non-abused children, the more the probative value. This conclusion is immediately
complicated, however, by that fact that little comparative data is available on the prevalence of
241
Thomas D. Lyon & Jonathan J. Koehler, The Relevance Ratio: Evaluating the Probative
Value of Expert Testimony in Child Sexual Abuse Cases, 82 Cornell Law Review 43-78 (1996).
Lyon and Koehler offer a useful approach for comparing the prevalence of symptoms among
abused and non-abused children. Calling their approach the ―relevance ratio,‖ Lyon and Koehler
write, ―In a child abuse case, evidence that children suffered a particular symptom is relevant for
proving abuse if the presence of the symptom increases the chance that abuse actually occurred.
One can determine whether the presence of symptoms increases the chance that abuse occurred
by considering two proportions: the proportion of abuse cases in which the symptom occurs, and
the proportion of nonabuse cases in which the symptom occurs. If the proportion of abuse cases
exhibiting the symptom is greater than the proportion of nonabuse cases exhibiting the symptom,
then the symptom is relevant for proving that abuse occurred.‖ (p. 46).
Suppose the symptom under consideration is sexual behavior problems. In a study of 81
sexually abused and 90 non-abused four- to eight-year-old children, Hibbard and Hartman found
that 19 percent of the sexually abused children had sexual behavior problems, whereas only 1
percent of the non-abused children had such problems. The numerator of the relevance ratio is 19.
The denominator is 1. The relevance ratio is 19:1. Among children in this study, sexual behavior
problems were 19 times more common in abused children than in non-abused children. A
relevance ratio of 19:1 has diagnostic/probative value. Roberta A. Hibbard & Georgia L.
Hartman, Behavioral Problems in Alleged Sexual Abuse Victims, 16 Child Abuse & Neglect 755762 (1992).
Contrast the relevance ratio for sexual behavior problems with the relevance ratio for
nightmares. In Hibbard and Hartman‘s study, 41 percent of the abused children had nightmares,
but 42 percent of the non-abused children had nightmares! The relevance ratio is 41:42, or nearly
1. Whenever a relevance ratio approaches 1, as it does with nightmares in Hibbard and Hartman‘s
study, the probative value of the symptom evaporates. Indeed, if the denominator of the relevance
ratio is 10 percent or more, the symptom typically lacks meaningful probative value.
The relevance ratio reminds us that we cannot determine whether a symptom has
probative value simply by asking, How often does the symptom occur among abused children?
We also have to ask, How often does the symptom occur among non-abused children? It is the
comparison of the two frequencies that sheds light on probative value.
49
various symptoms among abused and non-abused children.242 Moreover, quite a few sexually
abused children have no detectable symptoms.243
[B] What are the Populations of Sexually Abused and NonAbused Children?
The fact that a symptom is seen more often in sexually abused than non-abused children
is not enough to conclude that the symptom is probative of abuse. One must also consider the fact
that the population of non-abused children is much larger than the population of abused
children.244 Even though a symptom is observed more often in sexually abused children, because
there are more non-abused than abused children, most children with the symptom will be nonabused.245
Consider the imaginary city of Dillville. Ten thousand female children between 3 and 10
years of age live in Dillville. Twenty percent of Dillville‘s girls are sexually abused—a number
that finds support in the literature. There are 2,000 sexually abused 3- to 10-year-old girls in
Dillville, and 8,000 non-abused girls. A five-year-old Dillville girl starts wetting the bed at night,
and medical reasons for the bedwetting are ruled out. Sexual abuse causes some potty trained
children to wet the bed. Does this child‘s bedwetting tend to prove sexual abuse? Assume
bedwetting in toilet trained children is observed in 20% of sexually abused children and 5% of
non-abused children. We would expect to find 400 sexually abused bed wetters among Dillville
girls. Yet, because 5% of non-abused children wet the bed, and because there are many more non242
243
244
The proposition that the population of non-abused children is much larger than the
population of abused children is itself complicated. Populations vary. The statement in the text
refers the population at large. If we switch populations, say to the population of children with
confirmed psychiatric diagnoses, the proportion of sexually abused children in this population
might well be higher than in the general population. Indeed, even among the general population,
the proportion of sexually abused childen in one community will likely differ slightly from that of
another community.
245
Ana J. Bridges, David Faust & David C. Ahern, Methods for the Identification of Sexually
Abused Children: Reframing the Clinician‘s Task and Recognizing Its Disparity with Research
on Indicators. In Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse
Allegations pp. 21-47 (2009)(Wiley); David Faust, Ana J. Bridges & David C. Ahern, Methods
for the Identification of Sexually Abused Children: Issues and Needed Features for Abuse
Indicators. In Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse
Allegations pp. 3-19 (2009)(Wiley); David Faust, Ana J. Bridges & David C. Ahern, Methods for
Identifcation of Sexually Abused Children: Suggestions for Clinical Work and Research. In
Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations pp.
29-66 (2009)(Wiley); Thomas D. Lyon & Jonathan J. Koehler, The Relevance Ratio: Evaluating
the Probative Value of Expert Testimony in Child Sexual Abuse Cases, 82 Cornell Law Review
43-78 (1996); Jonathan J. Koehler, The Normative Status of Base Rates at Trial. In J. Castellan,
Jr. (Ed.), Individual and Group Decision Making: Current Issues pp. 137-149 (2003)(Lawrence
Erlbaum).
50
abused than abused children, we find an equal number of bedwetters—400—among the nonabused Dillvillers. If all we know about a child is that she wets the bed, she is as likely to be nonabused as abused.246
246
An additional example helps to illustrate the impact of population size on the probative
value of symptoms. Consider four-year-old Sally who, until a month ago, was a normal, happygo-lucky little girl living with her mom and dad. Sally attended day care while her parents
worked. A month ago, Sally started having terrifying nightmares nearly every night. Sally also
started occasionally wetting the bed at night. Something may have happened to Sally a month
ago. The question is, What? Are Sally's nightmares and bed wetting evidence that Sally may have
been sexually abused at day care? The psychological literature indicates that some young sexual
abuse victims experience nightmares and regression, including bed wetting. It is tempting to
conclude that Sally's nightmares and bed wetting provide evidence of sexual abuse. In fact,
however, if all we know about Sally is that a month ago she started having nightmares and bed
wetting, the odds are Sally is not abused. This conclusion flows from the rate at which nightmares
and bed wetting occur in the total population of non abused children in the United States.
Assume for purposes of illustration that there are 30 million nonabused children in the United
States, and that 5 percent of these nonabused children experience serious nightmares and
regression. Thus, in the total population of nonabused children, 1.5 million have nightmares and
regression. Now, shift your attention away from nonabused children and concentrate on sexually
abused children. Assume there are 300,000 sexually abused children in the United States, and that
25 percent of them have serious nightmares and regression. Why the higher percent among
sexually abused children? Because sexual abuse probably does cause nightmares and regression
in a substantial percent of children. Thus, among sexually abused children, 75,000 experience
nightmares and regression. When the abused and the nonabused children with nightmares and
regression are combined, the total number of children with these symptoms is 1,575,000. In the
total population of children with nightmares and regression, the great majority is not abused. The
lesson of this example is simple: If all you know about Sally is that she has nightmares and bed
wetting, the odds are Sally is not abused. Symptoms shared by abused and nonabused children
reveal little about sexual abuse.
For those who find numbers unfriendly, there is another way to illustrate the impact of
population sizes—Beans! Take a paper bag and fill it with 1,000 or so red beans. The red beans
represent non-abused children with nightmares and bed wetting. The red beans have these
symptoms for every reason under the sun save one: sexual abuse. Now, make a pile of twentyfive beans of another color, say white. The white beans represent sexually abused children with
nightmares and bed wetting. The number of red beans (nonabused) is much larger than the
number of white beans (abused) because the number of nonabused children far exceeds the
number of abused children. Take the twenty-five white (abused) beans and pour them into the bag
containing the 1,000 or so red (nonabused) beans. Shake thoroughly. Look inside. You can
literally see the effect of base rates. The abused beans are few and far between in a sea of
nonabused beans. I have used this simple demonstration many times. After I pour the abused
beans into the bag containing the nonabused beans, I shake the bag and ask someone in the
audience to reach in and pick one bean at random. The odds are very high that the person will
pick a nonabused bean. Indeed, in all the times I've conducted the demonstration, there was only
one occasion when the person picked an abused bean. The lesson, again, is clear: If all you know
about a child is that the child has symptoms or behaviors that are relatively common in abused as
well as nonabused children, the child is probably not abused.
The population size issue is complex, and the example discussed above is an
oversimplification. In some cases, symptoms like nightmares provide stronger evidence of abuse
51
Tinkering with the numbers reinforces the point that psychological symptoms seen in
abused as well as non-abused children say little about sexual abuse.247 Suppose 10% of sexually
abused and 5% of the non-abused girls wet the bed. Now 200 sexually abused girls wet the bed
and 400 non-abused girls do so. A bed-wetter is twice as likely to be non-abused as abused.248
[C] Symptoms That Have a Relatively Strong Nexus With
Sexual Abuse
Stress-related symptoms seen in sexually abused and non-abused children say little about
sexual abuse. With children younger than ten or so, however, symptoms of a sexual nature have a
strong connection to sexual knowledge, and sexual knowledge is sometimes rooted in sexual
abuse.249 Particularly concerning are: (1) aggressive sexuality in young children, (2) imitation by
young children of adult sexual acts, and (3) sexual knowledge that is unusual for a child of that
age.250
than in other cases. In most cases, however, nightmares and similar symptoms—considered
alone—say little about abuse. The lesson is straightforward: Decision making about child sexual
abuse should not rest heavily on symptoms that are observed in abused children and a substantial
number of nonabused children.
247
Debra A. Poole & Michele A. Wilfe, Child Development: Normative Sexual and
Nonsexual Behaviors That May Be Confused with Symptoms of Sexual Abuse. In Kathryn
Kuehnle & Mary Connell, The Evaluation of Child Sexual Abuse Allegations pp. 101-128, at 117
(2009)(Wiley)(―One reason short-lived complaints fail to differentiate between abused and
nonabused children is that physical complaints are so common among children in general.‖).
248
For excellent discussion of base rates, symptom frequencies, and population sizes see
249
250
Kathleen Coulborn Faller, Understanding and Assessing Child Sexual Maltreatment 182
(2nd ed. 2003)(Thousand Oaks, CA: Sage)(―Sexualized behavior is the most common marker of
sexual victimization, although it is found in only about 40% of children with a history of sexual
abuse.‖); William N Friedrich, P. Grambsch, D. Broughton, J. Kuipers & W.L. Beilke, Normative
Sexual Behavior in Children, 88 Pediatrics 456-464 (1991)(Friedrich and his colleagues found
that unusual sexual behaviors in non-abused children are those ―that are either more aggressive or
more imitative of adult sexual behavior.‖ p. 462); Melissa T. Merrick, Alan J. Litrownik, Mark D.
Everson & Christine E. Cox, Beyond Sexual Abuse: The Impact of Other Maltreatment
Experiences on Sexualized Behaviors, 13 Child Maltreatment 122-132 (2008)(―The link between
sexual abuse and such sexualized behaviors is well documented.… In fact, sexualized behaviors
and posttraumatic stress disorder are the two outcomes most reliably associated with a sexual
abuse history.‖ p. 123)
See State v. Shelton, 218 Or. App. 652, 180 P.3d 155, 157 (2008) (―Between August and
October 2004, Deborah noticed T engaging in unusual and inappropriate behavior. On one
occasion, Deborah observed T pull her underwear aside and attempt to insert rocks in herself. She
also noticed that T inappropriately touched Deborah's father and other visitors. The first
allegation of sexual abuse was raised after Brittany saw T grab the genitals of a male neighbor.
52
Children are not asexual.251 Yet, developmentally inappropriate sexual knowledge or
behavior in a young child indicates sexual knowledge.252 Consider a four-year-old who says,
When Brittany asked T why she had done that, she responded that defendant liked it when she did
it to him.‖).
251
Melissa T. Merrick, Alan J. Litrownik, Mark D. Everson & Christine E. Cox, Beyond
Sexual Abuse: The Impact of Other Maltreatment Experiences on Sexualized Behaviors, 13 Child
Maltreatment 122-132 (2008) (―Although our understanding of normative child psychosexual
development is rather limited, the display of certain sexual behaviors is expected and appropriate.
Sexual behaviors begin to emerge in infancy, with overt genital interest and play being most often
observed in 2- to 6-year-old boys and girls.‖ p. 122 ―Friedrich and colleagues (1991) noted that
some behaviors such as curiosity in nudity and showing private parts are also a normal part of
child development during this age period.‖ p. 123); Debra A. Poole & Michele A. Wolfe, Child
Child Sexual Abuse Allegations, pp. 101-128 (2009) (John Wiley)(―Early sexual curiosity is
reinforcing because the physical sensations that maintain sexual interest are present early in life.
Male infants are capable of erections, which they often experience during sleep or when crying,
and by 6 months male and female babies engage in pelvic thrusting and rocking motions that are
accompanied by self-absorbed looks of pleasure. There are reports that some babies of both sexes
are capable of orgasm, although males do not ejaculate until puberty. Boys enjoy touching and
pulling on their penises by 1 year, and the manual coordination necessary for rhythmic
masturbation is in place by 2 1/2 to 3 years. Boys and girls stimulate themselves in a variety of
ways, including thrusting of their stomachs and pushing against balled-up blankets and other
objects.… 2- to 6-year-olds frequently express sexual curiosity, act uninhibited about their
bodies, and touch themselves.‖ pp. 105-106. ―It is an error, though, to assume that most children
who show inappropriate sexual behavior were sexually abused.‖ p. 112.); Charita Mallants &
Kristina Casteels, Practical Approach to Childhood Masturbation, 167 European Journal of
Pediatrics 1111-1117 (2008)(masturbation is normal behavior); See William N. Friedrich,
Patricia Grambsch, Daniel Broughton, James Kuipers, & Robert L. Beilke, Normative Sexual
Behavior in Children, 88 Pediatrics 456-464, at 462 (1991).
252
Lindblad and colleagues studied the frequency of sexual behavior in 251 Swedish
preschool children attending day care. Frank Lindblad, Per A. Gustafsson, IngBeth Larsson, &
Bjorn Lundin, Preschoolers' Sexual Behavior at Daycare Centers: An Epidemiological Study, 19
Child Abuse & Neglect 569-577 (1995). In Lindblad's study, 99.6% of the children never
attempted to make an adult at day care touch the child's genitals; 91.2% never attempted to touch
a female staff member's breasts; 99.6% never attempted to touch an adult's genitals at day care;
91.6% of the children never exhibited their genitals at day care; 92.0% never played sexually
explorative games like ―doctor‖; 96.8% never initiated games simulating adult sexual activity.
Lindblad wrote, ―The low frequency of the behaviors mentioned above corresponds with the
results from the Friedrich study.‖ (p. 575).
Phipps-Yonas and colleagues studied sexual behavior in Minnesota preschool children
attending family day care. Susan Phipps-Yonas, Albert Yonas, Marian Turner, & Michael
Kauper, Sexuality in Early Childhood, 23 CURAReporter 1-5 (May 1993) (published by the
University of Minnesota, Center for Urban and Regional Affairs). Phipps-Yonas wrote:
We are all sexual creatures and sexual learning begins in early infancy.…
Among preschoolers there is often considerable freedom regarding their
bodies as well as touching of themselves, their peers, and family
53
members. Children at this stage engage in games such as playing doctor
or house which involve explorations through touch and sight of each
other's so-called private parts.
We asked [family daycare providers] to answer how children aged
one to three behave and how children aged four to six behave.… Older
children were viewed as much more curious than the younger ones
regarding the mechanics of sexual activities and reproduction. They were
also much more likely to engage in exploratory ―sexual‖ games such as
―I'll show you mine, if you show me yours‖ or doctor or house.
It is clear that from the perspective of their daycare providers, most
children, especially those who are four to six years old, interact
spontaneously, at least occasionally, in sensual or sexual ways and that
they imitate sexual behaviors that they have seen or heard about.
Developmental differences are notable. For example, while 18 percent of
the providers reported that children under age four only rarely or
sometimes act out sexual activities with dolls or stuffed animals, 34
percent stated this was true of four- to six-year-olds. The figures are
similar for the frequency with which providers rated apparent knowledge
of sexual intercourse. Perhaps in a corresponding vein, 90 percent said
children under age four never draw genitals on their pictures of people,
yet this drops to 74 percent for children who are older.
While a majority of both age groups were characterized as never
masturbating, approximately 30 percent in each range do occasionally
during naptime.…
As other investigators have reported, touching of other children's
genitals is relatively common; more than one-third of providers describe
the older group as doing this and just less than a third report it among the
younger children. Smaller percentages of each group were characterized
as pinching or hitting others' ―private parts‖ at times (22 percent for the
older group and 14 percent for the younger) or as trying to touch adults'
genitals (about 12 percent for each age group).
In Phipps-Yonas' study, the following behaviors were observed infrequently, especially
among children under age four: Efforts by a child to engage in pretend sexual intercourse; French
kissing; requests by the child to have another person suck, lick, or kiss the child's genitals;
attempts by the child to insert objects into their own or another person's buttocks or vagina.
Conte and colleagues were interested to learn what factors are important to mental health
professionals who evaluate children for possible sexual abuse. Conte surveyed 212 professionals
who regularly evaluate children for sexual abuse. Jon R. Conte, E. Sorenson, L. Fogarty, & J.
Dalla Rosa, Evaluating Children's Reports of Sexual Abuse: Results from a Survey of
Professionals, 61 American Journal of Orthopsychiatry 428-437 (1991). The evaluators were
asked to rank the importance of forty-one indicators of sexual abuse. The following indicators
were thought important by more than ninety percent of the evaluators: medical evidence of abuse,
age-inappropriate sexual knowledge, sexualized play during the interview, precocious or
seductive behavior, excessive masturbation, child's description is consistent over time, child's
description reveals pressure or coercion. Conte noted many areas of agreement among the
professionals in his sample. Conte cautioned, however, against placing too much confidence in
54
his findings. Conte noted that consensus among professionals ―does not ensure that professional
practice or professional beliefs are knowledge-based, and agreement among these respondents
should not be assumed to validate various practices as reliable and effective.‖ In other words,
although experts might agree on what factors are important in reaching clinical decisions about
sexual abuse, the experts might be wrong.
Hibbard and Hartman compared a broad range of behavioral symptoms observed in eightyone children who were alleged to be sexually abused, and ninety children who were not abused.
Robert A. Hibbard & Georgia Hartman, Behavioral Problems in Alleged Sexual Abuse Victims,
16 Child Abuse & Neglect 755-762 (1992). The children ranged in age from four to eight years.
Children who were thought to be abused were more symptomatic than nonabused children.
Hibbard and Hartman found a statistically significant difference between the two groups on
sexual behavior problems, with nineteen percent of the abused children demonstrating sexual
behavior problems, but only one percent of the nonabused children demonstrating such problems.
Wells and colleagues studied symptoms in three groups of prepubescent females: nonabused,
confirmed abuse, and suspected but unconfirmed abuse. Robert D. Wells, John McCann, Joyce
Adams, Joan Voris, & John Ensign, Emotional, Behavioral, and Physical Symptoms Reported by
Parents of Sexually Abused, Nonabused, and Allegedly Abused Prepubescent Females, 19 Child
Abuse & Neglect 155-163 (1995). The authors wrote:
Children with known or suspected sexual abuse were significantly more
likely to have a sudden emotional and behavioral change, to be fearful of
being left with a particular person, to know more about sex and to be
more interested and curious about sex matters or private parts. There
were no differences between the groups on bedwetting, headaches,
constipation, or vaginal bleeding.… Nightmares, crying easily, and being
fearful of being left alone were common symptoms in the nonabused
sample, as were difficulties with bedwetting, headaches and
stomachaches. These symptoms do not appear to be necessarily reflective
of abuse. In contrast, specific fears of a particular person, selfconsciousness about her body and fearfulness of males appear to be
questions that discriminate amongst abused and nonabused samples.…
Sudden changes in children's behaviors and particularly increased and
specific fears and heightened interest and curiosity regarding sexual
matters appear to happen relatively infrequently in the nonabused
sample, but are present in 30 to 66% of children who are suspected
victims of abuse. (pp. 169-161)
Research on developmentally normal and abnormal sexual behavior in children supports the
conclusion that the presence in a young child of sexual knowledge or behavior that is seldom
observed in nonabused children of that age provides evidence of sexual experience. In appropriate
cases, one can infer sexual abuse from developmentally unusual sexual knowledge or behavior.
See C.L.S. v. G.J.S., 953 So.2d 1025, 1042 (La. Ct. App. 2007)(―Some of the strongest
evidence that the Daughter was sexually abused was the testimony regarding the sexualized
behavior that was exhibited by this young child. It would have been almost impossible for the
Daughter at her tender age to simulate male masturbation and to describe ejaculation in the way
that she did without her having been exposed to sexual abuse.‖); In e Katelyn T., 225 W. Va. 264,
692 S.E.2d 307 (2010)(―Joel disclosed to Ms. Tordella that Michael played with cars on his ‗pee-
55
―Joey‘s pee pee was big and hard, and he made me lick it, and white stuff popped out and tasted
really yucky.‖ This child has seen a pornographic video, been coached, or been sexually abused.
A sexually naïve four-year-old could no more make this up than a coffee naïve child could
describe the process and product of an espresso machine.253 If pornography is ruled out—
pornography is unlikely to be the explanation when a child describes the taste and feel of seminal
fluid—that leaves coaching or abuse. Could a four-year-old be coached to provide such a graphic
description of abuse and ejaculation? Anything is possible, but it is doubtful. That leaves abuse as
the most likely explanation. Of course, Joey may not be the abuser. The child might have named
the wrong person. Even if Joey is innocent, however, sexual abuse remains. In sum, graphic
descriptions of sexual abuse from young children—―His pee pee spit on me‖—often provide
strong evidence of sexual abuse.254
In addition to words, the following behaviors indicate developmentally unusual sexual
knowledge: attempting to engage in explicit sex acts,255 inserting objects in the child‘s or
someone else‘s vagina or anus,256 initiating French kissing,257 excessive masturbation,258
masturbating with an object, and imitating sexual intercourse259 and oral sex.260 Again, one must
bug‘ and that ‗milk‘ then came out of Michael‘s ‗pee-bug.‘‖ p. 311. ―Katelyn stated that Michael
‗shaked it himself with his hand.‘‖ p. 312).
253
Sonja N. Brilleslijper-Kater, William N. Friedrich & David L. Corwin, Sexual Knowledge
Challenges, 28 Child Abuse & Neglect 1007-1017 (2004)(―Preschool children have only limited
knowledge of sexuality. They possess a basic knowledge of genital differences, one‘s gender
identity, sexual body parts, and their nonsexual functions. Children do not think sexually about
the functions of sexual body parts.‖ p. 1013).
254
C.L.S. v. G.J.S., 953 So.2d 1025, 1042 (La. Ct. App. 2007)(―Some of the strongest
evidence that the Daughter was sexually abused was the testimony regarding the sexualized
behavior that was exhibited by this young child. It would have been almost impossible for the
Daughter at her tender age to simulate male masturbation and to describe ejaculation in the way
that she did without her having been exposed to sexual abuse.‖); State v. Smith, 2009 WL 590166
(Wis. Ct. App. 2009)(child said defendant‘s penis felt like a ―hard banana‖).
255
Jordan v. State, 2010 WL 3547997 (Miss. Ct. App. 2010)(3-year-old; ―A.B. would
masturbate, grab people‘s private parts, express a desire to touch someone or to have someone
touch her, abuse the family dog, physically assault and fondle her baby sister, and simulate oral
sex with food.‖).
256
State v. Shelton, 218 Or. App. 652, 180 P.3d 155, 157 (2008)(―Between August and
October 2004, Deborah noticed T engaging in unusual and inappropriate behavior. On one
occasion, Deborah observed T pull her underwear aside and attempt to insert rocks in herself.‖).
257
State v. Jane M., 700 S.E.2d 302, 306 (W. Va. 2010)(foster moter ―observed R.M. ‗french
kissing‘ her 18 month-old younger brother and engaging in other overt sexual conduct that she
considdred abnormal behavior for a seven-year old child.‖).
258
Masturbation is normal. Charita Mallants & Kristina Casteels, Practical Approach to
Childhood Masturbation, 167 European Journal of Pediatrics 1111-1117 (2008)(masturbation is
normal behavior). It is excessive masturbation that is worrisome. Obviously, it can be difficult to
determine when normal masturbation cross the line into excessive masturbation.
259
Challenges, 28 Child Abuse & Neglect 1007-1017 (2004)(―Preschool children have only limited
knowledge of sexuality. They possess a basic knowledge of genital differences, one‘s gender
identity, sexual body parts, and their nonsexual functions. Children do not think sexually about
the functions of sexual body parts.‖ p. 1013); William N Friedrich, P. Grambsch, D. Broughton,
56
rule out benign explanations before attributing such behavior to sexual abuse. Moreover, although
sexual behavior is uncommon in non-abused children, it does occur, reviving the conundrum of
population sizes.261 The fact that sexual behavior is much more frequent in sexually abused than
non-abused young children does not eliminate the fact that the population of non-abused children
is much larger than the population of abused children.262 Giving proper respect to population sizes
and benign alternatives, developmentally unusual sexual knowledge often provides evidence of
sexual abuse.263
J. Kuipers & W.L. Beilke, Normative Sexual Behavior in Children, 88 Pediatrics 456-464
(1991)(―Genital interest of both sexes increases in the 2- to 5-year-old period and genital play is
common. . . . Exhibitionistic and voyeuristic activities with other children and adults are also
common in the 4- to 6-year-old period. . . . It seems likely that sexual interest and probably some
form of activity continue, but that as children learn the cultural standards these interests are
concealed.‖ p. 456).
260
Jordan v. State, 2010 WL 3547997 (Miss. Ct. App. 2010)(3-year-old; ―A.B. would
masturbate, grab people‘s private parts, express a desire to touch someone or to have someone
touch her, abuse the family dog, physically assault and fondle her baby sister, and simulate oral
sex with food.‖).
261
Challenges, 28 Child Abuse & Neglect 1007-1017 (2004); Debra A. Poole & Michele A. Wolfe,
Child Development: Normative Sexual and Nonsexual Behaviors That May Be Confused with
Symptoms of Sexual Abuse. In Kathryn Kuehnle & Mary Connell, The Evaluation of Child
Sexual Abuse Allegations. pp.101-128 (2009)(John Wiley)("It is an error, though, to assume that
most children who show inappropriate sexual behavior were sexually abused. The majority of
sexual behavior occurs among nonabused children simply because sexual behavior is common
and there are more nonabued than abused children." p. 112.).
262
Lucy Berliner & Jon R. Conte, Sexual Abuse Evaluations: Conceptual and Empirical
Obstacles, 17 Child Abuse & Neglect 111-125, at 116 (1993)(―while the presence of sexual
behavior may be significant, it is not determinative of abuse‖); Gary B. Melton, John Petrila,
Normal G. Poythress & Christopher Slobogin, Psychological Evaluations for the Courts: A
Handbook for Mental Health Professionals and Lawyers (3d ed. 2007)(Guilford)(―Because a
large proportion of a small population [sexually abused children] still may be smaller than a small
proportion of a large population [non-abused children] and because sexualized behavior is
exhibited by only a minority of the sexually abused population, the [population size] problem still
applies.‖ p. 874 n. 211); Debra A. Poole & Michele A. Wolfe, Child Development: Normative
Sexual and Nonsexual Behaviors That May Be Confused with Symptoms of Sexual Abuse. In
Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations, pp.
101-128 (2009) (John Wiley) (―It is an error, though, to assume that most children who show
inappropriate sexual behavior were sexually abused. The majority of sexual behavior occurs
among nonabused children simply because sexual behavior is common and there are more
nonabused than abused children.‖ p. 112.).
263
See William N. Friedrich, Sexual Victimization and Sexual Behavior in Children: A
Review of Recent Literature, 17 Child Abuse & Neglect 59-66, at 64 (1993) (―elevated sexual
behavior in sexually abused children is a consistently identified finding‖); William N. Friedrich,
Patricia Grambsch, Linda Damon, Sandra K. Hewitt, Catherine Koverola, Reuben A. Lang, Vicki
Wolfe, & Daniel Broughton, Child Sexual Behavior Inventory: Normative and Clinical
Comparisons, 4 Psychological Assessment 303-311, at 303 (1992) (―The finding that sexual
behavior problems are a useful discriminating variable between sexually abused and nonabused
children appears to be an increasingly robust and reliable finding.‖)
57
A number of appellate decisions grapple with the issue of population size.264
[D] Multiple Symptoms Can Reduce Concerns About
Symptom Frequencies and Population Sizes—As Evidence
Accumulates, Confidence Grows
Earlier subsections of Section 6.10 discuss the impact of symptom frequencies and
population sizes on the probative value of symptoms seen in abused and nonabused children—
often referred to as base rates. Earlier subsections also describe the probative value of
developmentally unusual sexual knowledge and behavior in young children. In an article in the
Journal of Child Sexual Abuse, Everson and Faller describe why the presence in a child of
multiple symptoms—especially unusual sexual symptoms—can provide evidence that
substantially nullifies the impact of symptom frequencies and population sizes on probative
value.265 Everson and Faller write: ―[T]he use of multiple indicators clearly trumps the impact of
base rates. Three to five non-redundant abuse indicators of only moderate strength are sufficient
to overcome the differential base rates of abused and non-abused children in most realistic
samples.‖266
The evidentiary value of developmental unusual sexual knowledge is not without
controversy. See Kerry M. Drach, Joyce Wientzen, & Lawrence R. Ricci, The Diagnostic Utility
of Sexual Behavior Problems in Diagnosing Sexual Abuse in a Forensic Child Abuse Evaluation
Clinic, 25 Child Abuse & Neglect 489-503 (2001). In the Abstract of this article the authors
wrote, ―This study found no significant relationship between a diagnosis of sexual abuse and the
presence or absence of sexual behavior problems in a sample of children referred for sexual abuse
evaluation. The finding suggests that community professionals should use caution in relying on
sexual behavior problems as a diagnostic indicator of abuse.‖ The article by Drach, Wientzen and
Ricci is criticized in William N. Friedrich, Sarah T. Trane, & Kevin J. Gully, Letter to the Editor,
It Is a Mistake to Conclude that Sexual Abuse and Sexualized Behavior Are Not Related: A
Reply to Drach, Wientzen, and Ricci (2001), 29 Child Abuse & Neglect 297-302 (2005).
Friedrich and his colleagues wrote, ―Their findings reiterate the fact that sexual behavior is not
just a function of sexual abuse, but in fact can reflect normative processes, family variables, and
child variables. However, we believe that their conclusion that a history of sexual abuse does not
correlate with sexualized behavior is a mistake on three counts: circular logic, overgeneralization
of null results, and an invalid criterion.‖ (p. 297). In a reply Letter to the Editor Ricci, Drach, &
Wientzen take issue with Friedrich's critique. Lawrence R. Ricci, Kerry M. Drach, & Joyce
Wientzen, Further Comment on the Lack of Utility of Sexual Behavior Problems as Measured by
the Child Sexual Behavior Inventory in Diagnosing Sexual Abuse: A Reply to Friedrich, Gully,
and Trane (2004), 29 Child Abuse & Neglect 303-306 (2005).
264
Steward v. State, 652 N.E.2d 490 (Ind. 1995)(court recognized population size problem
with generalized ―syndrome‖ testimony); Sanderson v. Commonwealth, 291 S.W.3d 610 (Ky.
2009); State v. Cressey, 137 N.H. 402, 628 A.2d 969 (1993)(court understood population size
issue); State v. Johnson, 652 So.2d 1069 (La. Ct. App. 1995)(expert‘s testimony was undermined
because expert did not understand population size issue).
265
266
58
Regarding the independence (non-redundance) of items of evidence, as a general matter,
the strength of evidence increases when sources of evidence are independent of one another.267
Consider, an auto accident case in which one eyewitness describes the accident four separate
times. Compare this single eyewitness to the testimony of four separate eyewitnesses, each of
whom describes the accident once, and each of whom is independent of the others. What is more
convincing? One person telling the same story over and over again, or four people independently
telling the same story? Of course, in a given case, the testimony of one witness can be more
persuasive than the testimony of four or forty witnesses. In the run of cases, however, as sources
of evidence that are independent of one another mount, confidence builds. As symptoms of sexual
abuse add up and combine with other evidence—especially a convincing disclosure from the
child—worries about symptom frequencies and population sizes fade.268
§ 6.11 MENTAL HEALTH TESTIMONY AS
SUBSTANTIVE EVIDENCE
This section discusses psychological testimony offered as substantive evidence of sexual
abuse. Psychological testimony offered to rehabilitate a child‘s impeached credibility is addressed
in § 6.20.
[A] Can Mental Health Professionals Validly Determine
Whether Sexual Abuse Occurred?
Mental health professionals who treat sexually abused children routinely diagnose sexual
abuse. These clinicians base their clinical diagnoses on children‘s statements, psychological
symptoms observed in sexually abused children, and other evidence.269 Is the degree of certainty
needed to diagnose sexual abuse in the clinic sufficient to support expert testimony that a child
was sexually abused?270 Put another way, can mental health professionals reach conclusions about
sexual abuse with sufficient validity to justify receipt of their conclusions in court?
This question divides experts on child sexual abuse. Some experts, notably Gary Melton,
argue mental health professionals cannot diagnose sexual abuse with sufficient reliability to
267
268
269
Mental health professionals have to diagnose a problem before treating it. It makes no
sense to treat the effects of sexual abuse unless there is reason to believe the child was sexually
abused.
270
Gary B. Melton, John Petrila, Norman G. Poythress & Christopher Slobogin,
Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and
Lawyers (3d ed. 2007)(Guilford)(―Although clinical intuition may be useful in guiding treatment
planning, it is insufficient as a basis for determining whether maltreatment may have occurred.‖
p. 516).
59
justify expert testimony that a child was sexually abused.271 Melton asserts that evaluating
symptoms observed in abused and non-abused children is a matter of common sense, and that
mental health professionals have little to add.272 Moreover, Melton argues that when mental
health professionals make decisions about sexual abuse, they rely so heavily on the child‘s words
that a decision about sexual abuse is little more than a thinly veiled opinion the child told the
truth.273 Courts agree that experts are not allowed to opine a child was truthful.274 Melton
concludes courts should not permit mental health professionals to testify a child was sexually
abused.275
Herman reviewed the small body of empirical research on the accuracy of clinical
judgments about sexual abuse and concluded, along with Melton, that such judgments lack
reliability.276 Similar skepticism is expressed by Faust, Bridges, and Ahern, who conclude that
271
Lawyers (3d ed. 2007)(Guilford)(―There is no reason to believe that clinicians‘ skill in
determining whether a child has been abused is the product of specialized knowledge.‖ p. 516).
272
Lawyers (3d ed. 2007)(Guilford)(―The determination of whether abuse or neglect occurred is a
judgment requiring common sense and legal acumen, but it is outside the specialized knowledge
of mental health professionals.‖ p. 508. See also p. 516).
273
Lawyers (3d ed. 2007)(Guilford)(―Some commentators distinguish the admissibility of an opinion
about whether a purportedly abused child is believable from that of a ‗diagnosis‘ of a child as
abused. In our view (and that of most appellate courts), this is a distinction without a difference.‖
p. 515).
Melton is not alone in believing that an opinion abuse occurred is essentially an opinion on
credibility. See, State v. Streater, 673 S.E.2d 365 (N.C. Ct. App. 2009)(physician‘s testimony that
his findings were consistent with sexual abuse was an impermissible opinion regarding the child‘s
credibility; there was no physical evidence of sexual abuse); Bell v. Commonwealth, 245 S.W.3d
738 (Ky. 2008); State v. Kirkman, 126 Wash. App. 97, 107 P. 3d 134 (2005).
274
See § 6.21.
275
Gary B. Melton & Susan Limber, Psychologists‘ Involvement in Cases of Child
Maltreatment, 44 American Psychologist 1225-1233 (1989)(―Under no circumstances should a
court admit the opinion of an expert about whether a particular child has been abused.‖ p. 1230);
Gary B. Melton, John Petrila, Norman G. Poythress & Christopher Slobogin, Psychological
Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (3d ed.
2007)(Guilford)(―Because testimony as an expert involves an implicit representation that the
opinions presented are grounded in specialized knowledge, a mental health professional should
decline on ethical grounds to offer an opinion about whether a child told the truth or has been
‗abused.‘ By the same token, under the rules of evidence, such an opinion should never be
admitted.‖ p. 516 ).
276
Steve Herman, Forensic Child Sexual Abuse Evaluations, In Kathryn Kuehnle & Mary
Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations pp. 247-266 (2009)(John
Wiley)(―There have been only a handful of empirical studies that shed some light on the probable
accuracy of informal clinical judgments about the validity of allegations of CSA. There are also a
number of relevant theoretical analyses and commentaries. Taken together, these empirical
studies and theoretical analyses indicate that the reliability, validity, and accuracy of evaluators'
60
clinical judgments about the validity of uncorroborated allegations of CSA are low.‖ p. 251.
―This analysis indicates that, in the absence of corroborative evidence, forensic evaluators (a) are
unable to discriminate between true and false reports of sexual abuse based on children's reports
during unstructured investigative interviews at greater than expected chance accuracy (the level
of accuracy that could be achieved by making judgments based on flipping a coin) and (b) have a
limited ability to discriminate between true and false reports based on children's reports during
NICHD protocol interviews.‖ p. 259.).
See Steve Herman, Improving Decision Making in Forensic Child Sexual Abuse Evaluations,
29 Law and Human Behavior 87-120 (2005). Herman analyzes the small body of empirical
research relating to clinical accuracy of decision making about sexual abuse. Herman wrote:
Given the potentially severe consequences of poorly conducted
FCSAEs [forensic child sexual abuse evaluations], one might argue that
only the most highly trained and well prepared mental health
practitioners—board-certified forensic psychiatrists and psychologists,
and doctoral-level social workers with forensic training—should perform
FCSAEs. In reality, however, ―much of the investigation done in cases of
child sexual abuse appears to be done by the least trained professionals
and paraprofessionals.‖ Many FCSAEs are performed by CPS
caseworkers who have no licensure in any mental health profession. (p.
88). . . .
… Another problem is that the therapeutic interview techniques that
are taught to MHPs [mental health professionals]—for example, focusing
on understanding therapy clients' subjective reality—may make it more
difficult to conduct objective forensic interviews. As a result even
experienced practitioners of FCSAEs often demonstrate poor forensic
interviewing skills. Furthermore, the research on child sexual abuse and
child sexual abuse allegations is large, complex, constantly growing and
changing, and self-contradictory at times. Many MHPs lack the time,
knowledge, or skills necessary to effectively tackle this massive and
confusing corpus. Finally, many clinicians have erroneous implicit or
explicit beliefs about allegations of child sexual abuse that may reduce
the accuracy of their evaluations. In summary, many practitioners lack
adequate levels of training, knowledge, and skill to perform high quality
forensic interviews of children or to accurately describe to legal decision
makers the factors that distinguish between true and false allegations of
abuse. (p. 89). . . .
… [T]here is a widespread (but not universal) consensus among experts
in the field that decisions by clinicians to either substantiate or not
substantiate uncorroborated sexual abuse allegations currently lack a firm
scientific foundation and that such opinions may be based on little more
than a clinician's subjective opinion or hunch that abuse did or did not
occur. (p. 90). . . .
Direct empirical evidence bearing on the validity and accuracy of
clinical judgments about allegations of child sexual abuse is difficult or
impossible to obtain. Experimental studies face insurmountable ethical
barriers to achieving high levels of internal and external validity. The
61
clinical judgments about sexual abuse are based on unverified methods and speculation.277 Other
experts concur.278
accuracy of clinical judgments in this field will never be directly studied
in controlled experiments because children obviously cannot be sexually
abused or subjected to intensive suggestive interviews by adults in order
to determine whether or not clinicians can distinguish between children
known to be sexually abused and those who have not been abused but
who are the objects of suspicions or allegations of abuse by adults. (p.
91). . . .
. . . [T]here is now considerable evidence indicating that even
experienced clinicians have virtually no ability to reliably detect the
difference between true and false narratives of past events told by
children who give false reports or develop false memories as a result of
suggestive interviewing. Furthermore, a significant body of research
evidence indicates that, with few exceptions, most people (including
most law enforcement personnel and most [mental health professionals]
have little ability to detect motivated lying by adults. (p. 96). . . .
An analysis of existing empirical research indicates that clinician
judgments about the validity of unconfirmed allegations of child sexual
abuse in [forensic child sexual abuse evaluations] have low levels of
reliability, validity, and accuracy. (p. 104). . . .
The estimated minimum value of 24% for the error rate in current
substantiation decisions in [forensic child sexual abuse evaluations] that
involve unconfirmed allegations of child sexual abuse casts doubt on the
utility of these decisions in clinical contexts and on their admissibility in
legal contexts. The Daubert decision of the United States Supreme Court
is now a controlling precedent in Federal courts and in about half of all
state courts. Daubert makes explicit reference to the magnitude of the
known or potential error rate as one of the factors to be considered in
determining the admissibility of expert witness testimony.… Legal
decision makers might be more likely to prohibit the admission of expert
evidence that is directly or indirectly derived from a substantiation
decision by a [mental health professional] if they were informed that
such testimony is based on a diagnostic procedure that has an overall
error rate that is almost certainly greater than 24%. (p. 106). . . .
The current finding of low overall accuracy in clinician judgments
about unconfirmed allegations of child sexual abuse is consistent with
the almost universal consensus among top scientific experts that these
evaluations currently have no firm scientific basis. (p. 107).
277
Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations 3-19, at 4 (2009)(Wiley).
278
T.M. Horner, M.J. Guyer & N.M. Kalter, The Biases of Child Sexual Abuse Experts.
Believing Is Seeing, 21 Bulletin of the American Academy of Psychiatry and Law 281-292
(1993).
62
Garb is an authority on the accuracy of clinical judgments by mental health
professionals.279 Garb‘s research indicates that when it comes to causation—e.g., was this child
abused?—mental health professionals fare poorly.
On the other side of the debate, many mental health professionals believe it is possible in
some cases for experts to conclude that sexual abuse is the most likely explanation for a child‘s
symptoms and statements.280 Faller concludes this is the majority position in the United States.281
Everson and Faller thoroughly analyze and criticize the conclusions of Melton, Herman, Faust,
and others.282 Everson and Faller offer a scientifically based endorsement of forensic assessment
of sexual abuse.283 Everson and Faller write:
The methodology underlying comprehensive forensic
evaluations is well designed to neutralize common threats to the
diagnostic utility of sexualized behavior in [child sexual abuse] CSA
assessments. This methodology includes the use of a broad range of data
sources for a comprehensive search for abuse indicators, non-indicators,
and corroboration of substantive evidence; an iterative process of
constructing and refining a case specific narrative to account for the
available data; and the testing of alternative narratives or hypotheses
suggested by the data. Such a methodology is also likely to enhance the
probability of a balanced evaluation which emphasizes reducing both
false positive and false negative errors. Admittedly, comprehensive
forensic evaluations are often time-consuming and costly. . . .284
279
Howard N. Garb, Studying the Clinician: Judgment Research and Psychological
Assessment (1998)(American Psychological Association)(―A review of the validity of causal
judgments did not reveal any task for which validity was good or excellent. . . . Clinicians should
be very careful about making causal judgments. Because case formulations are frequently made
on the basis of clinical experience and clinical intuition, and because reliability and validity have
often been poor for case formulations, clinicians may frequently want to defer from making
judgments about the causes of a client‘s problems or they may want to use empirical methods to
derive causal inferences.‖ pp. 100-101. ).
280
S.M. Sgroi, F.S. Porter & L.C. Blick, Validation of Child Sexual Abuse. In S.M. Sgroi
(Ed.), Handbook of Clinical Intervention in Child Sexual Abuse. pp. 39-79 (1983)(Lexington
Books).
281
Kathleen C. Faller, Understanding and Assessing Child Sexual Maltreatment (2d ed.
2002)(Sage).
282
283
284
63
As credible evidence favoring a proposition mounts, so does confidence the proposition
is correct.285 This is true in all kinds of litigation, including sexual abuse cases. So long as items
of evidence pointing to sexual abuse are independent of one another, the cumulative impact of the
evidence increases confidence the child was abused.286 Commenting on the incremental impact of
items of evidence, McCormick famously quipped, ―A brick is not a wall.‖ As the evidentiary
bricks are assembles into a convincing narrative, probative value strengthens.
Building a wall of evidentiary bricks is the grist of the trial lawyer‘s mill. The same is
true for the skilled mental health professional conducting an assessment of possible sexual abuse.
The competent evaluator gathers all relevant evidence, patiently separates wheat from chaff,
evaluates the probative worth of items of evidence—always mindful of symptom frequencies and
population sizes—and methodocially works toward a conclusion supported by the best evidence.
Mental health testimony offered as substantive evidence of child sexual abuse is complex
and controversial.287 If such testimony is admissible, it should be offered only by properly
qualified experts. The professional must have a thorough grasp of child development, including
memory and suggestibility; normal sexual development; the impact of sexual abuse; normal and
abnormal psychology; medical evidence of sexual abuse; the process by which children disclose
sexual abuse; proper and improper interview methods; prevalence rates in abused and non-abused
children; the impact of population sizes; and the strengths and weaknesses of clinical judgment.
The professional should be conversant with the debate regarding the validity and reliability of
expert testimony offered as substantive evidence of child sexual abuse. Only a small number of
mental health professionals working with sexually abused children possess this depth of
knowledge. Professionals who lack this expertise should not provide expert testimony that a child
was sexually abused or has symptoms consistent with sexual abuse. On the other hand, when a
professional with the necessary expertise has performed a thorough assessment, the expert should
be allowed to testify to a reasonable certainty that sexual abuse is the most satisfactory
explanation for the evidence regarding the child.
[B] Use of Props to Diagnose and Treat Sexual Abuse
Some clinicians use props to help diagnose and treat sexually abused children. Thus,
some therapists allow children to arrange toys in a sand tray. Other therapists encourage children
285
286
Everson and Faller discuss the importance of independent sources of evidence when
evaluating a child for possible sexual abuse. See Mark D. Everson & Kathleen Coulborn Faller,
Base Rates, Multiple Indicators, and Comprehensive Forensic Assessments: Why Sexualized
Behavior Still Counts in Forensic Child Sexual Abuse Evaluations, Journal of Child Sexual
Abuse (in press).
287
Steve Herman, The Role of Corroborative Evidence in Child Sexual Abuse Evaluations,
Journal of Investigative Psychology and Offender Profiling (2010)(published online)(―There is
considerable disagreement amongst researchers and [mental health professionals] about how
much weight should be accorded to different types of psychosiclal evidence of [child sexual
abuse.]‖).
See In re Gina D., 138 N.H. 697, 645 A.2d 61, 64 (1994)(―Experts in the field of behavioral
science dispute the reliability and validity of diagnoses of sexual abuse based on behavioral
characteristics of the child.‖).
64
to draw. Use of sand trays, drawing, and other techniques is one thing in therapy. It is another
thing when the focus turns from therapy to forensic assessment of whether a child was sexually
abused. In the context of forensic assessment, the question is: Are techniques such as sand trays
and interpretation of children's drawings sufficiently reliable to support conclusions about sexual
abuse? At this point in time the answer is no.
Regarding interpretation of children's drawings, Pipe and Salmon write, ―There is, however,
little evidence to suggest that interpretations of aspects of children's drawings themselves reliably
shed light on children's experiences or their emotional functioning. Further, there is considerable
debate concerning whether a child's drawing itself (the size and placement of the drawing's
components) provides forensically important information.‖288 Murrie, Martindale, and Epstein
reviewed the literature on ―assessment techniques in child sexual abuse evaluations‖289 and wrote:
Play therapy and children's drawings, when employed as projective
assessment techniques, meet few if any of these guidelines for forensic
assessment tools. They are not objective and reliable measures of
constructs that are of interest to the court, nor are they reliable indicators
of external events. There are no established psychometric properties,
manuals for use, or measures of response style for these techniques. In
short, these techniques clearly fail to meet thresholds for relevance and
reliability regarding legal issues such as whether a child has experienced
sexual abuse. (p. 398)
More generally, no psychological instrument is a psychometrically
sound technique to identify whether an event (e.g., abuse, neglect) has
occurred. (p. 398) . . .
There is no basis for presuming that children, through their stories,
drawings, and play, consistently reveal their perceptions, nor is there
basis for presuming that children's perceptions always represent reality.
(p. 400) . . .
Attempts to study sand play empirically have been minimal,
primarily due to the limited psychometric support for sand play
instruments. The few studies that have examined sand play as an
evaluative technique have been significantly flawed, relying on single
raters, unknown inter-rater reliability when more raters were involved, or
small sample sizes. (p. 402.) . . .
In the absence of scientifically rigorous research that offers
meaningful data regarding the sand play characteristics of sexually
abused and nonsexually abused youth, any conclusions about sexual
abuse that clinicians draw based on sand play are impressionistic
speculation. At present, then, there is no constructive role for sand play
in evaluation or testimony related to child sexual abuse allegations. (pp.
403-404) . . .
288
Margaret-Ellen Pipe & Karen Salmon, Dolls, Drawing, Body Diagrams, and Other Props.
In Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations
365-395 (2009)(John Wiley).
289
Daniel Murrie, David A. Martindale, & Monica Epstein, Unsupported Assessment
Techniques in Child Sexual Abuse Evaluations. In Kathryn Kuehnle & Mary Connell (Eds.), The
Evaluation of Child Sexual Abuse Allegations 397-420 (2009)(John Wiley).
65
Projective drawing techniques are based on the premise that children
project into their drawings important clinical information that trained
clinicians can decipher. Projective drawing techniques may require the
child to draw a person (the Draw-a-Person [DAP], or a Human Figure
Drawing [HFD], or to draw a combination of pictures (the House-TreePerson [HTP]. (p. 404) . . .
Although some normative data is available for the Draw-a-Person
technique, the validity and reliability of the technique has yet to be
empirically demonstrated. (p. 405) . . .
… There is no reliable research to support the use of human
drawings to identify sexually abused children. (p. 406) . . .
… [T]here is no credible research to support the use of the HTP to
identify a history of sexual abuse among children. (p. 407) . . .
… [T]he presence of genitalia in children's drawings was neither
sensitive nor specific to sexually abused children.… Therefore, as with
previous reviews of the available data, our review … reveals no
empirical support for the argument that clinicians can identify signs of
sexual abuse in children's drawings. (p. 409) . . .
In almost every respect, projective play and projective drawings are
inappropriate assessment techniques for cases of suspected CSA. First,
these methods are not a direct way to assess relevant psycholegal
constructs, and therefore require tremendous inferences. Indeed, these
instruments require inferences for which virtually no empirical data is
available. Second, as reviewed in this chapter, there is minimal reliability
or validity data for projective play or drawing, and virtually no
supportive reliability or validity data with respect to CSA evaluations. (p.
414).
[C] Case Law on Psychological Testimony Offered as
Substantive Evidence of Child Sexual Abuse
Psychological expert testimony offered as substantive evidence of child sexual abuse
takes several forms. A few—mostly older—decisions allow mental health professionals to opine
that a child was sexually abused.290 The weight of recent authority disallows an opinion that a
particular child was sexually abused.291 Some decisions express concern that an opinion abuse
happened comes too close to usurping the function of the jury.292 Other decisions conclude an
Broderick v. King‘s Way Assembly of God Church, 808 P.2d 1211 (Alaska 1991); State
v. Hester, 114 Idaho 688, 760 P.2d 27 (1988); Townsend v. State, 103 Nev. 113, 734 P.2d 705
(1987).
291
Peterson v. State, 450 Mich. 349, 537 N.W.2d 857 (1995); State v. Streater, 673 S.E.2d
365 (N.C. Ct. App. 2009); State v. Cressey, 628 A.2d 696 (N.H. 1993); State v. Chandler, 364
N.C. 313, 697 S.E.2d 327 (N.C. 2010).
292
State v. Florczak, 76 Wash. App. 55, 882 P.2d 19 (1994)(opinion child had PTSD
secondary to child sexual abuse was improper opinion on ultimate issue).
290
66
opinion abuse occurred crosses the line into prohibited testimony on credibility.293 In State v.
Chandler,294 the North Carolina Supreme Court ruled, ―For expert testimony presenting a
definitive diagnosis of sexual abuse, an adequate foundation requires supporting physical
evidence of the abuse.‖295
As discussed in § 6.11[A], there is controversy over the reliability of mental health
diagnoses of child sexual abuse. An opinion that a particular child was sexually abused falls
squarely into this controversy. The proponent of expert mental health testimony that a child was
sexually abused should prove the reliability of such testimony. The most appropriate forum to
address the reliability issue is a hearing under Daubert v. Dow Pharmaceuticals296 or Frye v.
United States.297
The Oregon Supreme Court‘s approach to expert testimony diagnosing child sexual abuse
set forth in State v. Southard,298 and discussed in § 6.7[D], is worth noting. The court held that a
diagnosis of child sexual abuse can be sufficiently reliable to be admissible, but that the probative
value of such a diagnosis is outweighed by the danger of unfair prejudice to the defendant.
Although most courts do not allow mental health expert testimony that a particular child
was sexually abused, numerous decisions permit experts to describe symptoms commonly
observed in sexually abused children.299 Courts that allow testimony describing symptoms
observed in sexually abused children often hold that an expert may testify that the child in the
instant cases has the symptoms.300
Expert testimony that a child has symptoms often seen in sexually abused children is
essentially testimony that a child‘s symptoms are consistent with sexual abuse. Expert testimony
that a child‘s symptoms are consistent with sexual abuse is addressed in § 6.11[D].
[D] Expert Testimony that a Child‘s Statements and
Symptoms are Consistent with Sexual Abuse
293
State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).
364 N.C. 313, 697 S.E.2d 327 (2010).
295
697 S.E.2d at 331.
296
509 U.S. 579 (1993).
See United States v. Sanchez, 65 M.J. 145 (C.A.A.F. 2007)(court applied Daubert to expert
medical testimony).
297
293 F.1013 (D.C. App. 1923).
298
347 Or. 127, 218 P.3d 104 (2009).
299
United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010); State v. Reyna, 234 P.3d 761
(Kan. 2010); State v. Chandler, 364 N.C. 313, 697 S.E.2d 327 (N.C. 2010); Chavez v. State, 324
S.W.3d 785 (Tex. Ct. App. 2010)(―Thus, an expert witness may not offer a direct opinion on the
truthfulness of a child complainant‘s allegations. Nor may an expert offer an opinion that the
class of persons to which the complainant belongs, such as child abuse victims, is truthful or
worthy of belief. However, expert testimony that a child exhibits behavioral characteristics that
have been empirically shown to be common among children who have been sexually abused is
relevant and admissible under Rule 702.‖); DeLeon v. State, 2010 WL 3409598 (Tex. Ct. App.
2010).
300
United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010); State v. Reyna, 234 P.3d 761
(Kan. 2010); DeLeon v. State, 322 S.W.3d 375 (Tex. Ct. App. 2010).
294
67
Although most appellate decisions reject mental health testimony that a child was
sexually abused or has a diagnosis of sexual abuse, most (but not all)301 courts approve testimony
that a child‘s statements/symptoms are consistent with sexual abuse.302 Courts seem comfortable
with ―consistent with‖ testimony because it is a step away from a diagnosis of sexual abuse and a
direct opinion on the ultimate issue. The expert simply informs the jury that the child‘s symptoms
are consistent with sexual abuse, and lets the jury reach its own conclusion.
There are three problems with ―consistent with‖ testimony. First, although testimony that a
child‘s symptoms are consistent with sexual abuse is not an opinion in so many words that a child
was sexually abused, the testimony is offered precisely for that purpose. The testimony invites the
following reasoning: Because the child has symptoms consistent with sexual abuse, the child was
sexually abused. Thus, ―consistent with‖ testimony is really a thinly disguised opinion the child
was abused. The Eighth Circuit put its finger on it when it wrote in United States v. Denoyer,303
―Consistent with‖ is the ―customary cautious professional jargon‖ for causation.304 In State v.
Cressey,305 the New Hampshire Supreme Court saw no appreciable difference between an expert's
opinion that a child's behavior was consistent with sexual abuse, and an opinion that the child was
sexually abused.
―Consistent with‖ testimony is the functional equivalent of a direct opinion on abuse. As
discussed in § 6.11[A] and [B], however, there is controversy surrounding ―direct opinion‖
testimony. ―Consistent with‖ testimony masks the controversy behind the innocuous term
―consistent with.‖ If testimony in the form of a direct opinion on sexual abuse is excluded
because of doubts about reliability, the same should obtain for testimony that a child‘s symptoms
are consistent with sexual abuse.306
A second concern about ―consistent with‖ testimony is that many symptoms that are
consistent with sexual abuse are also consistent with non-abuse.307 Nightmares are consistent with
sexual abuse, but are also consistent with a host of issues that have nothing to do with abuse.
Indeed, nightmares are consistent with normal child development. Expert testimony that a child‘s
301
State v. Streater, 673 S.E.2d 365 (N.C. Ct. App. 2009)(consistent with testimony too close
to an opinion the child was telling the truth).
302
United States v. Charley, 189 F.3d 1251 (10th Cir. 1999); Hubert v. State, 297 Ga. App. 71,
676 S.E.2d 436 (2009); Bishop v. State, 982 So.2d 371, 381 (Miss. 2008); Hobgood v. State, 926
So.2d 847 (Miss. 2006).
303
811 F.2d 436 (8th Cir. 1987).
811 F.2d at 438 n.3.
See Bishop v. State, 982 So. 2d 371, 381 (Miss. 2008) (―While it is true that an expert may
not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child
sexual abuse victim has been truthful, it is within the scope of permissible testimony for an expert
to testify regarding his or her opinion that the alleged victim's characteristics are consistent with a
child who has been sexually abused.‖); State v. Hazelton, 987 A.2d 915 (Vt. 2009).
305
137 N.H. 402, 628 A.2d 696 (1993).
306
Expert testimony that a child‘s symptoms are consistent with sexual abuse should be
subjected to analysis under Daubert or Frye. See Hadden v. State, 690 So.2d 573 (Fla.
1997)(consistent with testimony subject to Frye).
307
See Daniels v. State, 4 So.3d 745 (Fla. Ct. App. 2009)(nurse testified she had never seen a
child react as the victim did to the physical examination; there was no basis to conclude that the
child‘s reaction suggested sexual abuse).
304
68
symptoms are consistent with sexual abuse is likely to inflate the probative value of the
symptoms.
The third problem with ―consistent with‖ testimony is related to the second. ―Consistent
with‖ testimony masks the twin issues of symptom frequency and population sizes, discussed in §
6.10. When an expert testifies that a child‘s symptoms are consistent with sexual abuse, the jury
takes the testimony as proof the child was sexually abused. The jury is unlikely to appreciate the
complexity of symptom frequencies in abused and non-abused children, along with population
sizes. Unfortunately, jurors are not the only ones in the dark. Many attorneys fail to appreciate
these issues, with the result that the probing cross-examination needed to expose the weaknesses
of ―consistent with‖ testimony goes wanting.
Given the shortcomings of ―consistent with‖ testimony, such testimony should be
excluded unless the proponent of the testimony addresses two issues during the expert‘s direct
examination. First, it is not be enough for an expert to state that a child‘s symptoms are consistent
with sexual abuse. The expert should explain why the symptoms tend to prove sexual abuse.
Second, the expert should explain the impact of symptom frequency and population sizes on
probative value. Only when symptom frequency and population sizes are added to ―consistent
with‖ testimony is the jury equipped with the information it needs to give ―consistent with‖
testimony its proper weight. Absent this information, ―consistent with‖ testimony is inherently
misleading.
In addition to explaining why ―consistent with‖ testimony is relevant, an expert could
explain that as symptoms accumulate—as evidence adds up—concerns about symptom frequency
and population sizes can abate. See § 6.10[D].
Medical experts often testify that the findings of a physical examination are consistent
with sexual abuse. Concerns about ―consistent with‖ testimony from mental health experts apply
with equal vigor to ―consistent with‖ testimony from medical experts.
§ 6.12 POSTTRAUMATIC STRESS DISORDER
As mentioned in § 6.3[A][11], a substantial number of sexually abused children meet the
diagnostic criteria for Posttraumatic Stress Disorder (PTSD).308 Is a diagnosis of PTSD probative
of sexual abuse? Two issues arise. First, how many non-sexually abused children have PTSD?
Second, the diagnosis of PTSD presupposes that something traumatic happened.309 But that gets
the cart before the horse. The issue in child sexual abuse litigation is whether abuse occurred. If a
diagnosis or PTSD assumes trauma occurred, how can the diagnosis prove the trauma?310 It is
reasoning in a circle.311 Perhaps the best approach is to eschew the label PTSD, and to focus on
308
The diagnostic criteria for PTSD are contained in American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000).
309
The diagnostic criteria for PTSD are contained in American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000)(―The person
has been exposed to a traumatic event . . . .‖ p. 468)..
310
State v. Chauvin, 846 So.2d 697, 704 (La. 2003)(―PTSD assumes the presence of a
stressor and then attaches a diagnosis to the child‘s reactions to it.‖).
311
2 David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, Modern
Scientific Evidence: The Law and Science of Expert Testimony § 13-1.2.1 (2002)(West)(―Some
69
the child‘s symptoms. Of course, if these symptoms are also observed in non-abused children—
they are—it is necessary to deal with the issues of symptom frequency in abused and non-abused
children and population sizes, discussed in § 6.10.
Given the fact that a diagnosis of PTSD assumes trauma occurred, one can argue that
expert testimony using PTSD terminology is inherently misleading, likely to exaggerate the
probative value of symptoms in the eyes of the jury, and unfairly prejudicial to the defendant.312
§ 6.13 EXPERT TESTIMONY FROM FORENSIC
INTERVIEWERS OFFERED AS SUBSTANTIVE
EVIDENCE OF CHILD SEXUAL ABUSE
Interviewing children about possible sexual abuse requires skill and patience.
Interviewing is analyzed in Chapter 1. Across the United States there are more than eight hundred
child advocacy centers (CAC) specializing in forensic interviewing. The forensic interviewers
working in CACs are predominantly social workers and, to a lesser extent, police officers. These
professionals are equipped to conduct forensic interviews. In a disturbing development, however,
a number of appellate decisions allow forensic interviewers to offer what amounts to expert
testimony that a child was sexually abused.313 With respect for forensic interviewers, the vast
majority of these professionals are experts on forensic interviewing, not assessment of child
sexual abuse—a task for which most psychiatrists, psychologists, and social workers are
incompetent.
In Williams v. State,314 the Mississippi Court of Appeals approved expert testimony from
a forensic interviewer that a child‘s interview was ―consistent with‖ sexual abuse. This testimony
was offered as substantive evidence. Yet there was no showing that the interviewer possessed the
expertise required to provide ―consistent with‖ testimony.
The South Carolina Supreme Court in State v. Douglas315 considered testimony from a
victim assistance advocate who regularly interviewed children. The interviewer had attended a
forty hour training on forensic interviewing plus follow up training. She did not have a college
courts have expressed concern with the self-referential aspects of PTSD. In particular, a necessary
prerequisite to a finding of PTSD, by definition, is the experiencing of ‗an event that is outside
the range of normal human experience that would be distressing to almost anyone.‘ That the
alleged victim suffered such an experience, of course, is what the criminal prosecution is intended
to determine. Hence, there is a circularity to reasoning from a diagnosis of PTSD, which accepts
that the traumatic experience occurred if the individual says it did, to the judgment that the
traumatic experience occurred.‖ p. 107).
312
See Federal Rule of Evidence 403.
313
Purdie v. State, 2010 WL 3903547 (Ark. Ct. App. 2010)(―we hold that the admission of
the forensic examiner‘s opinion that the victim‘s testimony was not fabricted or coached was an
abuse of discretion.‖); Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436 (2009)(court approves
expert testimony from police officer/forensic interviewer who interviewed child that child
appeared traumatized); Parramore v. State, 5 So.3d 1074 (Miss. 2009)(forensic interviewer
testified that child‘s behavior and demeanor were consistent with other sexually abused children;
Supreme Court did not address the issue of the interviewer‘s testimony, and affirmed the
defendant‘s conviction); McCrory v. State, 47 So.3d 195 (Miss. Ct. App. 2010).
314
970 So.2d 727 (Miss. Ct. App. 2007).
315
380 S.C. 499, 671 S.E.2d 606 (2009).
70
degree. The interviewer testified that based on her interview she concluded the child needed a
medical evaluation. Although the interviewer did not opine that the child was telling the truth or
was abused, the import of her testimony could not have been lost on the jury. For all intents and
purposes the interviewer said, ―I believed the child was abused, therefore I referred the child for a
medical examination.‖ This is substantive evidence. The Supreme Court was not persuaded. The
court emphasized that the interviewer did not say she believed the child. The court was convinced
the interviewer‘s testimony—which the court did not consider expert testimony—was helpful to
the jury. With respect, the South Carolina Supreme Court got it wrong. The testimony was clearly
substantive evidence. Yet, as in the Mississippi case, there was no showing that the interviewer
was competent to provide substantive evidence. A forensic interviewer‘s hunch about abuse
should not be paraded before the jury as substantive evidence.
§ 6.14 EXPERT TESTIMONY ON GUILT,
INNOCENCE, OR IDENTITY OF DEFENDANT AS
PERPETRATOR
In several cases, expert witnesses testified that a particular person abused a child.316 Nothing
in the professional literature suggests that experts on child sexual abuse possess special
knowledge that allows them to identify the perpetrator. Courts uniformly reject expert testimony
indicating that a particular person abused a child.317 Courts equally reject expert testimony that
the defendant is guilty or innocent.318
§ 6.15 EXPERT TESTIMONY REGARDING
PSYCHOLOGICAL SYNDROMES
Expert testimony describing psychological syndromes is offered in a broad range of civil and
316
United States v. Suarez, 35 M.J. 374 (C.M.A. 1992); In re Rebecca, 419 Mass. 67, 643
N.E.2d 26, 35 (1994); State v. Alberico, 116 N.M. 151, 861 P.2d 192 (1993); State v. Bush, 595
S.E.2d 715 (N.C. Ct. App. 2004) (plain error to admit expert testimony identifying defendant as
perpetrator); State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838, 842 (1994); State v. Rimmasch,
775 P.2d 388 (Utah 1989); In re Ross, 158 Vt. 122, 605 A.2d 524 (1992); State v. Jones, 71
Wash. App. 798, 863 P.2d 85 (1993).
317
State v. Dylan J., 204 P.3d 44 (N.M. Ct. App. 2009); State v. Salazar, 139 N.M. 603, 136
P.3d 1013, 1017 (2006) (physician testified in child sexual abuse case; there was no physical
evidence of abuse; physician described what child told her; ―Where the expert does not use his or
her expertise in testifying about the identity of the perpetrator, and instead is just repeating what
the alleged victim related, we analyze the issue under hearsay rules, and not the rules governing
the admission of expert testimony.‖); State v. Giddens, 681 S.E.2d 504 (N.C. Ct. App. 2009)
(child protection worker offered non-expert testimony that CPS had investigated the case and
concluded defendant was the perpetrator; plain error, new trial awarded); State v. Streater, 678
S.E.2d 367, 374 (N.C. Ct. App. 2009) (―but it is the specific identification of defendant as
perpetrator which crosses over the line into impermissible testimony.‖); See authorities collected
in note 240.
318
United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010); United States v. Diaz, 59 M.J. 79
(C.A.A.F. 2003) (expert may not opine on guilt or innocence of defendant); Chapman v. State, 18
P.3d 1164, 1172 (Wyo. 2001) (―It is well established that Wyoming law prohibits expert
testimony as to the guilt of the defendant.‖).
71
criminal litigation. Unfortunately, syndrome evidence occasionally leads to confusion.319 Judge
Teague of the Texas Court of Criminal Appeals quipped, ―At the present time there are too many
‗syndromes‘ and no consensus in the mental health community as to what they actually mean or
are meant to mean.‖320 In a similar vein, Chief Judge Everett of the Court of Appeals for the
Armed Forces lamented, ―I have a good deal of difficulty with the use of ‗expert testimony‘ in the
area of profiles and syndromes because I am not convinced that such testimony is of much use to
the fact finder.‖321
Confusion regarding psychological syndromes occurs in part because the legal profession has
little information on the definition and uses of syndromes in medicine and psychology. Without a
clear appreciation of the role syndromes play in clinical decision making, judges and attorneys
are hampered in their ability to evaluate the probative value of psychological syndromes. In an
effort to ease the confusion, the present section offers an analytical framework for understanding
psychological syndromes. With the basics out of the way, § 6.16 discusses two common sources
of misunderstanding regarding psychological syndromes. Sections 6.16[B] and 6.18 analyze
Child Sexual Abuse Accommodation Syndrome. Section 6.19 addresses Parental Alienation
Syndrome. Rape Trauma Syndrome is addressed in §§ 6.15[E] and 11.7[C], and Battered Woman
Syndrome is the subject of Chapter 9.
[A] Syndrome Defined
The word ―syndrome‖ was employed by Hippocrates in the fifth century B.C.322 The word is
found in western medical books dating from 1541.323 Today, Dorland's Medical Dictionary
defines syndrome as ―a set of symptoms which occur together.‖324 Murphy elaborates, ―It
319
In Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1996), the Kentucky Supreme Court
expressed concern that expert testimony on syndromes interferes with the jury's responsibility to
decide who and what to believe. The court wrote: ―In the final analysis, the more that courts
permit experts to advise the jury based on probability, classifications, syndromes, and traits, the
more we remove the jury from its historic function of assessing credibility.‖ 937 S.E.2d at 695.
See Robert P. Mosteller, Syndromes and Politics in Criminal Trials and Evidence Law, 46 Duke
Law Journal 461-516 (1996).
320
Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990), disapproved, Cohn v. State,
849 S.W.2d 817 (Tex. Crim. App. 1993).
321
United States v. August, 21 M.J. 363, 365 (C.M.A. 1986) (Everett, C.J., concurring).
322
Stanley Jablonski, Jablonski's Dictionary of Syndromes & Eponymic Diseases, p. viii
(1991) (Malabar, Fla.: Krieger).
323
See T.R. Harrison, Introduction, Encyclopedia of Medical Syndromes, p. xiii (Robert H.
Durham ed., 1960) (New York: Hoeber). Harrison states:
The word syndrome has been in recognized use since 1541 when it
appeared in Copland's English translation of Galen. Although the word is
of uncertain definitude nosologically and scholars are not agreed upon a
pronunciation, it has become one of the most universally used and
seemingly indispensable medical terms extant.
324
Dorland's Illustrated Medical Dictionary 1632 (28th ed. 1994) (Philadelphia: W.B.
Saunders).
In addition to defining syndrome, disease, and diagnosis, it is useful to define sign and
symptom. In reaching diagnostic opinions, professionals consider signs as well as symptoms. A
sign is an objective manifestation of disease or disorder observed by the professional on physical
examination, e.g., a bruise. A symptom is the patient's description to the professional of the
72
sometimes happens that several manifestations, no one of which is specific, tend to occur
together. Such a concurrence is referred to by the Greek word ‗syndrome;‘ indeed the word
‗syndrome‘ is a literal translation into Greek of the word ‗concurrence,‘ a running together.…
The mere occurrence of two (or more) findings in a patient does not suffice to constitute a
syndrome.… It would be necessary to establish that they occurred together more often than one
would expect by chance, before there would be anything to comment on.‖325
In medicine and psychology, syndromes are defined somewhat loosely. The Encyclopedia of
Medical Syndromes state, ―[The] definition of a syndrome is both vague and variable.‖326 Wulff
writes, ―Most syndromes … are not well defined.‖327 The word ―syndrome‖ is elastic, and applies
in a variety of situations.
The word ―syndrome‖ is not the only term used to describe concurring symptoms. The word
―profile‖ is occasionally found in the literature describing a set of symptoms, characteristics, or
behaviors.328 The American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders329 uses the word ―disorder‖ rather than ―syndrome,‖ although the Manual
acknowledges that ―each of the mental disorders is conceptualized as a clinically significant
behavioral or psychological syndrome or pattern.‖330
[B] Disease Defined
Dorland's Medical Dictionary defines ―disease‖ as ―any deviation from or interruption of the
normal structure or function of any part, organ, or system (or combination thereof) of the body
that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology,
and prognosis may be known or unknown.‖331
patient's subjective perceptions and memories of bodily and mental states, e.g., the patient's
statement, ―I feel like I'm going to vomit.‖
See Sergio I. Magalini, Sabina C. Magalini, & Giovanni de Francisci, Dictionary of Medical
Syndromes, p. v (1990) (Philadelphia: J.B. Lippincott) (―The concept of syndrome as a cluster of
symptoms and signs.‖); Benjamin F. Miller, Encyclopedia and Dictionary of Medicine, Nursing,
and Allied Health 1446 95th ed. 1992) (Philadelphia: Saunders) (defining syndrome as ―a
combination of symptoms resulting from a single cause or so commonly occurring together as to
constitute a distinct clinical picture‖).
325
Edmond A. Murphy, The Logic of Medicine, p. 112 (1976) (Baltimore: Johns Hopkins
University Press).
326
T.R. Harrison, Introduction, Encyclopedia of Medical Syndromes, p. xiii (Robert H.
Durham ed., 1960) (New York: Hoeber).
327
Henrik R. Wulff, Rational Diagnosis and Treatment, p. 105 (1976) (Oxford: Blackwell
Scientific Publishers).
328
United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988); People v. Robbie, 92 Cal. App.
4th 1075, 112 Cal. Rptr. 2d 479 (2002); Wyatt v. State, 578 So. 2d 811 (Fla. Dist. Ct. App. 1991)
(rejecting defendant's proposed expert testimony that defendant did not fit profile of pedophile
because such opinion is not admissible under Florida evidence law).
329
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
(4th ed. Text Revision 2000) (Washington, D.C.: American Psychiatric Association).
330
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (4th ed. Text Revision 2000) (Washington, D.C.: American Psychiatric Association).
331
Dorland's Illustrated Medical Dictionary, p. 478 (28th ed. 1994) (Philadelphia: W.B.
Saunders).
73
[C] Differentiating Diseases from Syndromes
The concepts of disease and syndrome overlap, but are not identical. With diseases, the cause
of the malady is usually, although not always, known. Thus, influenza is a disease that is
produced by a specific virus, as is polio. With syndromes, by contrast, the cause of the patient's
symptoms is often unknown or poorly understood. The Encyclopedia of Medical Syndromes
describes the difference between diseases and syndromes as follows, ―The terms syndrome and
disease are often unwittingly used interchangeably although they are not synonymous. In general,
a syndrome evokes more interest and is more challenging than a disease because its relationships
are more obscure and its etiology is less apparent. If, subsequently, a specific etiologic factor does
become manifest, the condition should then be reclassified to a disease.‖332 DeGowin expands on
the distinction between diseases and syndromes, ―For several thousand years physicians have
recorded their observations and clinical trials about patients. In the accumulated facts they have
discerned disordered patterns of bodily structure, function, and mentation. Some patterns of
features recur with such frequency as to suggest a common cause; the disorder with these features
is called a disease and is given a specific name.… Other clusters of attributes, less closely related
to a single cause, but known by a combination of features, are called syndromes.‖333 Thus,
diseases often have a relatively well-understood relationship to a specific cause or etiology. By
contrast, the cause or causes of syndromes are often unknown or obscure.
[D] Diagnosis Defined
The word ―diagnosis‖ has more than one meaning. First, diagnosis is a process, the ―art of
distinguishing one disease from another.‖334 Second, diagnosis describes the end result of the
diagnostic process. Diagnosis is the label attached to an illness, condition, or disease that has been
distinguished from other illnesses, conditions, or diseases.335 Physicians and mental health
professionals use diagnostic terminology when they work with syndromes as well as diseases.
[E] Diagnostic Value of Diseases and Syndromes
Many diseases and some syndromes share the feature of diagnostic value. That is, many
diseases and some syndromes point with varying degrees of certainty to a particular cause or
etiology. The clinician reasons as follows: ―In my patient I observe symptoms A, B, and C. These
symptoms constitute Disease X or Syndrome Y. From the presence of Disease X or Syndrome Y,
332
T.R. Harrison, Introduction, Encyclopedia of Medical Syndromes, pp. xiii-ix (Robert H.
Durham ed., 1960) (New York: Hoeber). See also Edmund A. Murphy, The Logic of Medicine, p.
114 (1976) (explaining that ―where there is a rational connection between manifestations, it is not
useful to apply the term ‗syndrome‘ ‖).
333
Richard L. DeGowin, DeGowin & DeGowin's Bedside Diagnostic Examination, p. 1 (5th
ed. 1987) (New York: Macmillan).
334
Scientific Publications) (the author described diagnosis as a process and explained, ―When the
clinician has recorded his patient's iatrotropic symptoms and the usual routine data, he will
consider which diagnosis is the most probable, and if this diagnosis is a clinical syndrome, he will
institute those investigations which are necessary to fill in the nosographic picture. If the patient
does not fulfill the criteria for that syndrome, he will then institute those investigations which are
necessary to make or exclude the diagnosis of the second most probable syndrome, and so on.‖).
335
Scientific Publications).
74
I reason backward to the cause or etiology of the symptoms.‖ The ability to reason backward
from symptoms to etiology is diagnostic value.
With diseases, the relationship between symptoms and etiology is often clear. Thus, many
diseases have high diagnostic value. The same is true for some syndromes, that is, the relationship
between the symptoms constituting the syndrome and the etiology is clear. With many
syndromes, however, the relationship between symptoms and etiology is unclear or unknown.
When it is not possible to reason backward from symptoms to etiology, the syndrome or disease
lacks diagnostic value.
Focusing for the moment on syndromes that have diagnostic value, it is important to
understand that diagnostic value varies from syndrome to syndrome. Syndromes with diagnostic
value are on a continuum of diagnostic certainty. Some diagnostic syndromes point with greater
certainty to their etiology than others.
Two syndromes that are used in litigation illustrate the continuum of diagnostic certainty:
Battered Child Syndrome and Rape Trauma Syndrome. A child with Battered Child Syndrome is
very likely to have suffered nonaccidental injury.336 Battered Child Syndrome points
convincingly to abuse. The doctor can reason backward from symptoms to cause. Battered Child
Syndrome has high diagnostic value.
Compare the high diagnostic value of Battered Child Syndrome with the low diagnostic value
of Rape Trauma Syndrome. Rape Trauma Syndrome consists of symptoms and behaviors that are
caused by a broad range of events including, but not limited to, rape. Rape Trauma Syndrome
may have no diagnostic value at all. Even if the syndrome has some diagnostic value, it is low,
which accounts for the fact that most courts hold that Rape Trauma Syndrome is not admissible to
prove lack of consent.337
Nearly all of the psychological syndromes that find their way into court lack diagnostic value.
In other words, nearly all psychological syndromes are nondiagnostic.338 One cannot reason
backward from the syndrome to its etiology.
§ 6.16 SOURCES OF MISUNDERSTANDING
REGARDING PSYCHOLOGICAL SYNDROMES
Confusion regarding psychological syndromes springs from two sources of
misunderstanding.
[A] Failure to Understand the Continuum of Diagnostic
Certainty
The first source of misunderstanding regarding syndromes pertains only to syndromes that
have diagnostic value. Recall from § 6.15[E] that there is a continuum of diagnostic certainty
336
See § 4.07 for discussion of Battered Child Syndrome.
See § 11.7[C] for discussion of Rape Trauma Syndrome and case law on the syndrome.
338
State v. Guthrie, 627 N.W.2d 401, 418 (S.D. 2001) (court observed that psychological
syndromes are not generally diagnostic; in this homicide case the court concerned itself with
psychological autopsy evidence and suicide profiles; the court wrote, ―In the present state of
behavioral science research, a syndrome may be generally reliable to describe and explain
functions and characteristics, but it is not dependable to prove that the syndrome itself establishes
the ultimate issue.‖).
337
75
among diagnostic syndromes. Some diagnostic syndromes have greater diagnostic value than
others. An individual who does not understand the continuum of diagnostic certainty could fall
into the trap of thinking that all syndromes have the same diagnostic value. This error can lead to
unwarranted inflation of the diagnostic value of particular syndromes.
The error of inflated diagnostic value is compounded by the names of certain syndromes.
Rape Trauma Syndrome is a good example. The name of the syndrome suggests a strong
relationship between the syndrome and rape. In truth, Rape Trauma Syndrome has either no or
low diagnostic value. The name Rape Trauma Syndrome invites exaggerated diagnostic value.
[B] Failure to Distinguish Diagnostic from Nondiagnostic
Syndromes
The second source of misunderstanding regarding syndromes arises from failure to appreciate
that some syndromes have diagnostic value and others do not. Many syndromes do not point with
any degree of certainty to a particular cause. The term ―nondiagnostic syndrome‖ is used here to
describe syndromes that have no diagnostic value. As mentioned above, nearly all of the
psychological syndromes used in court are nondiagnostic.
An example will nail down the distinction between diagnostic and nondiagnostic syndromes.
Compare two syndromes—one nondiagnostic, the other diagnostic. The nondiagnostic syndrome
is Child Sexual Abuse Accommodation Syndrome (CSAAS).339 Summit coined the term CSAAS
to describe how children react to ongoing sexual abuse. Children ―learn to accept the situation
and to survive. There is no way out; no place to run. The healthy, normal, emotionally resilient
child will learn to accommodate to the reality of continuing sexual abuse.‖340 Summit described
five aspects of CSAAS: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4)
delayed, conflicted, and unconvincing disclosure, and (5) retraction or recantation.
CSAAS is nondiagnostic because one cannot reason backward from CSAAS to sexual
abuse.341 The fact that a child demonstrates one or more aspects of CSAAS does not provide
substantive evidence of sexual abuse.342 For example, the fact that a child delayed reporting and
then recanted is hardly evidence of abuse.343 Summit observed, ―The accommodation syndrome is
neither an illness nor a diagnosis, and it can't be used to measure whether or not a child has been
339
Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse &
Neglect 177-193 (1983).
340
Neglect 177-193, at 184 (1983).
341
and Psychological Perspectives (2002)(Sage)(―The fact that a child exhibits sexual abuse
accommodation does not increase the likelihood that the child was abused.‖ (p. 107)).
342
See Hall v. State, 611 So. 2d 915, 919 (Miss. 1993) (CSAAS ―was not meant to be used as
a diagnostic device to show that abuse had, in fact, occurred. Thus, any attempt to show that a
child had been abused because he exhibits some signals of CSAAS is an improper usage of Dr.
Summit's theory‖).
343
See Andrew Cohen, Note, The Unreliability of Expert Testimony on the Typical
Characteristics of Sexual Abuse Victims, 74 Georgetown Law Journal 429-456, at 446 (1985)
(―There is something fundamentally strange about saying that since the child denies that the event
occurred, it must have occurred.‖).
76
sexually abused.‖344 CSAAS was not designed to prove abuse occurred. Rather, CSAAS was
intended to explain how children who are abused react to their maltreatment.345
Contrast CSAAS, which lacks diagnostic value, to Battered Child Syndrome, which has high
diagnostic value. Battered Child Syndrome points decisively to physical abuse. With Battered
Child Syndrome we reason backward from the presence of certain injuries to the cause of the
injuries.
Unfortunately, when CSAAS first appeared in 1983, it led to confusion in child sexual abuse
litigation. A number of prosecutors mistakenly offered expert testimony on CSAAS as
substantive evidence of sexual abuse.346 Thus, in Lantrip v. Commonwealth,347 the prosecutor's
expert testified that the child's ―behavior subsequent to the incident fulfills the guidelines of the
Sexual Abuse Accommodation Syndrome.‖348 Fortunately, the Kentucky Supreme Court caught
the error and ruled CSAAS is not admissible to prove abuse occurred.349
Early misunderstanding of CSAAS had unfortunate consequences. Expert testimony
erroneously based on CSAAS led some courts to believe the syndrome was designed to diagnose
child sexual abuse. So viewed, CSAAS was doomed to fail because it does not diagnose. It is not
surprising that courts became suspicious of the ability of mental health professionals to diagnose
sexual abuse. Unlike Battered Child Syndrome, which has high value in diagnosing nonaccidental
injury, CSAAS appeared anything but useful. Courts were not informed that CSAAS was being
asked to perform a task it could not accomplish.
CSAAS has a place in the courtroom, but not as substantive evidence of abuse. The syndrome
is useful to rehabilitate children's credibility by explaining that behaviors such as delayed
reporting and recantation are reatively common among sexually abused children. Proper use of
CSAAS is outlined in § 6.18.
344
Mary B. Meinig, Profile of Roland Summit, 1 Violence Update 6, at 6 (May 1991)
(Violence Update is no longer published. This monthly newsletter was published by Sage
Publications of Thousand Oaks, Cal.
See Roland C. Summit, Thomas W. Miller & Lane J. Veltkamp, The Child Sexual Abuse
Accommodation Syndrome: Clinical Issues and Forensic Implications. In Thomas W. Miller
(Ed.), Children of Trauma: Stressful Life Events and Their Effects on Children and Adolescents
43-60, at 45 (1998)(International Universities Press) (―The CSAAS was presented not as a
diagnostic checklist of signs and symptoms for identifying sexual abuse but rather as a guide to
understanding a child's limited options for coping in the face of prevailing adult indifference and
disbelief.‖).
345
Hall v. State, 611 So. 2d 915, 919 (Miss. 1993).
346
People v. Payan, 220 Cal. Rptr. 126 (1985), reh'g denied and ordered depubl'd, Jan. 30,
1986.
Courts have clarified early confusion about the proper role of expert testimony describing
CSAAS. See People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988); State v. J.Q.,
130 N.J. 554, 617 A.2d 1196 (1993).
347
713 S.W.2d 816 (Ky. 1986).
348
713 S.W.2d at 817.
349
The Kentucky Supreme Court based its decision on the fact that CSAAS is not generally
accepted in the scientific community as a reliable way to diagnose child sexual abuse. 713
S.W.2d at 817. In a series of decisions subsequent to Lantrip, the Kentucky Supreme Court
continued its rejection of expert testimony based on CSAAS. The Kentucky experience with
CSAAS is described in Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky. 1992).
77
[C] Summary
In sum, the common feature of nondiagnostic syndromes is that they do not point with any
certainty to an etiology. The etiology must be ascertained through other means. The purpose of
nondiagnostic syndromes is not to establish etiology, but to describe reactions to known events.
When evidence of a psychological syndrome is offered, the first step is to determine whether
the syndrome is diagnostic or nondiagnostic. Differentiating diagnostic from nondiagnostic
syndromes draws on analytical principles familiar to bench and bar. Determining whether a
syndrome is diagnostic is essentially a question of logical relevance, that is, does the presence of
certain symptoms have any tendency to make the existence of a particular cause or etiology more
probable? If the answer is yes, the syndrome is diagnostic. If it is not possible to draw a logical
inference from symptoms to etiology, the syndrome is nondiagnostic. If the syndrome is
nondiagnostic, it should not be used to establish the etiology of a person's symptoms.
§ 6.17 PSYCHOLOGICAL SYNDROMES AS NOVEL
SCIENTIFIC EVIDENCE
New psychological syndromes pop up like weeds in springtime. Indeed, there is such a
plethora of syndromes that Judge Teague of the Texas Court of Criminal Appeals once wondered
when there would be an ―appellate court judge syndrome.‖350 Just to mention a few, we have
Parental Alienation Syndrome (nondiagnostic),351 False Memory Syndrome (nondiagnostic),352
Lying Child Syndrome (nondiagnostic),353 Confusional Arousal Syndrome,354 and Neonaticide
Syndrome.355 The validity of many syndromes is open to question, and it is appropriate to subject
such syndromes to analysis under Frye or Daubert.356
A Frye or Daubert hearing is an ideal venue to test the validity and reliability of a new or
untested syndrome. A hearing allows inquiry into whether the syndrome is diagnostic or
nondiagnostic. If nondiagnostic, care can be taken to ensure that the syndrome is not used as
substantive evidence. If the syndrome is diagnostic, the hearing affords an opportunity to locate
the syndrome along the continuum of diagnostic certainty described in § 6.15[E].
350
Werner v. State, 711 S.W.2d 639, 649 (Tex. Crim. App. 1986) (Teague, J., dissenting).
Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation Between
Fabricated and Genuine Child Sex Abuse (1987) (Creskill, N.J.: Creative Therapeutics).
352
In March 1992, the ―False Memory Syndrome Foundation‖ was established to respond to
what its founders perceive to be widespread creation of false memories of abuse.
353
Jennette v. State, 197 Ga. App. 580, 583, 398 S.E.2d 734, 737 (1990)(the court held that
the jury did not need expert assistance to evaluate children's credibility. The defendant, a Junior
ROTC instructor, was charged with sexually abusing several of his female students. At trial,
defendant offered expert testimony on the ―lying child syndrome‖ which, according to defendant,
would ―explain the propensity of a child to relate and to repeat untruthful statements about a
person who is an authority figure in their life in order to manipulate that child's environment.‖
398 S.E.2d at 736. The trial court rejected the expert testimony, and the Court of Appeals
affirmed, ruling that the proffered testimony ―goes to the credibility and believability of the
victim witnesses' testimony that appellant committed the acts charged.‖ 398 S.E.2d at 737).
354
People v. Cegers, 7 Cal. App. 4th 988, 9 Cal. Rptr. 2d 297 (1992).
355
People v. Wernick, 89 N.Y.2d 111, 674 N.E.2d 322, 651 N.Y.S.2d 392 (1996).
356
People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291, 203 Cal. Rptr. 450 (1984)(Rape Trauma
Syndrome); People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988)(Child Sexual
Abuse Accommodation Syndrome); State v. Marrington, 335 Or. 555, 73 P.3d 911 (2003).
351
78
The California Supreme Court noted, ―Jurors tend to give considerable weight to ‗scientific‘
evidence when presented by ‗experts‘ with impressive credentials.‖357 Jurors can be blindsided by
syndrome evidence, particularly when the syndrome ―appears in both name and description to
provide some definitive truth which the expert need only accurately recognize and relay to the
jury.‖358 Subjecting syndrome evidence to analysis under Frye or Daubert helps confine
legitimate syndromes to their proper sphere, and to banish ―junk science‖ syndromes from the
court house.
§ 6.18 CHILD SEXUAL ABUSE ACCOMMODATION
SYNDROME
This section discusses Child Sexual Abuse Accommodation Syndrome (CSAAS), described
in 1983 by Summit.359 Summit described five characteristics observed in many sexually abused
children, particularly incest victims: (1) secrecy, (2) helplessness, (3) entrapment and
accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction.
Summit's purpose in describing CSAAS was to provide a ―common language‖ for
professionals working to protect sexually abused children. Summit did not intend CSAAS as a
device to detect or diagnose sexual abuse.360 Summit observed, ―The accommodation syndrome is
neither an illness nor a diagnosis, and it can't be used to measure whether or not a child has been
sexually abused.‖361 As explained in § 6.16[B], CSAAS is a nondiagnostic syndrome. The
Indiana Supreme Court observed in Steward v. State362 that CSAAS ―was not intended as a
diagnostic device and does not detect sexual abuse.‖363 The syndrome assumes abuse occurred
and helps explain the child's reaction to it.364 The Mississippi Supreme Court noted in Hall v.
State365 that the accommodation syndrome ―was not meant to be used as a diagnostic device to
show that abuse had, in fact, occurred. Thus, any attempt to show that a child had been abused
because he exhibits some signals of CSAAS is an improper usage of Dr. Summit's theory.‖366
CSAAS has a role to play in child sexual abuse litigation, but not as substantive evidence of
357
People v. Kelly, 17 Cal. 3d 24, 31, 549 P.2d 1240, 1245, 130 Cal. Rptr. 144, 149 (1976).
People v. Stoll, 49 Cal.3d 1136, 783 P.2d 698, 710, 265 Cal. Rptr. 111 (1989).
359
Neglect 177-193 (1983).
360
People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988); People v. Gray, 187
Cal. App. 3d 213, 231 Cal. Rptr. 658 (1986)(recognizing that syndrome does not diagnose, and is
not a test for sexual abuse); Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1996); State v.
Sargent, 738 A.2d 351 (H.N. 1999); State v. Scherzer, 301 N.J. Super. 363, 694 A.2d 196 (App.
Div. 1997).
361
Mary B. Meinig, Profile of Roland Summit, 1 Violence Update 6 (May 1992)(Violence
Update is no longer published. This monthly newsletter was published by Sage Publications of
Thousand Oaks, Cal.).
362
652 N.E.2d 490 (Ind. 1995).
363
652 N.E.2d at 493.
364
People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988); In re Sara M., 194
Cal. App. 3d 585, 239 Cal. Rptr. 605 (1987); State v. L.A.G., 2009 WL 1256904 (N.J. Super.
2009); State v. Stallings, 107 N.C. App. 241, 419 S.E.2d 586, 591 (1992).
365
611 So. 2d 915 (Miss. 1992).
366
611 So. 2d at 919.
358
79
abuse.367 Expert testimony on CSAAS is admissible to rehabilitate a child's credibility following
impeachment focused on delayed reporting, inconsistency, or recantation.368 Such rehabilitation is
367
People v. Perez, 182 Cal. App. 4th 231, 105 Cal. Rptr.3d 749 (2010); People v. Wells, 118
Cal. App. 4th 179, 12 Cal. Rptr. 3d 762, 769 (2004)(―Thus, by now, ‗[i]t is beyond dispute that
CSAAS testimony is inadmissible to prove that molestation actually occurred.‘‖); State v. R.B.,
183 N.J. 308, 873 A.2d 511, 520 (2005)(―expert testimony concerning the [CSAAS] syndrome is
permitted on a circumscribed basis to explain what may well be counter-intuitive to a jury: that a
child victim of sexual assault is often loathe to press an accusation. Testimony concerning this
syndrome is not admissible as substantive proof of child abuse. Because ‗[t]he expert should not
be asked to give an opinion about whether a particular child was abused[,] … care should be
taken to avoid giving the jury an impression that the expert believes based on CSAAS … that a
particular child has been abused.‘‖ p. 520. ―In a proper CSAAS case, ‗[t]he expert [is] not []
asked to give an opinion about whether a particular child was abused.‘ For that reason, the
CSAAS expert should not describe the attributes exhibited as part of that syndrome due to the risk
that the jury may track the attributes of the syndrome to the particular child in the case.‖ p. 523.);
People v. Weber, 807 N.Y.S.2d 222 (App. Div. 2006)(trial court did not err in allowing expert
testimony on CSAAS); Hall v. State, 611 So. 2d 915, 919 (Miss. 1993); State v. P.H., 178 N.J.
378, 840 A.2d 808 (2004).
368
Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003)(in this habeas corpus case, the court
wrote: ―CSAAS describes various emotional stages, experienced by sexually abused children,
that may explain their sometimes piecemeal and contradictory manner of disclosing abuse. Under
the CSAAS analysis, inconsistencies in a child's accounts of abuse do not necessarily mean that
the child is lying. The child could be telling different parts of what happened to different adults,
based on the child's comfort level with each adult or on the developmental immaturity of the
child's memory. Petitioner argues that the prosecution's presentation of CSAAS testimony made it
impossible for him to defend himself because the expert ―told jurors that no matter what a child
says or does, it is consistent with the child['s] having been molested‖ and thereby ―effectively
insulated the child from Petitioner's challenges to her credibility.‖ . . . [W]e have held that
CSAAS testimony is admissible in federal child-sexual-abuse trials, when the testimony concerns
general characteristics of victims and is not used to opine that a specific child is telling the
truth.‖); United States v. Suarez, 35 M.J. 374 (C.M.A. 1993); People v. Perez, 182 Cal. App. 4th
231, 105 Cal. Rptr.3d 749 (2010); People v. Wells, 118 Cal. App. 4th 179, 12 Cal. Rptr. 3d 762
(2004); People v. Yovanov, 69 Cal. App. 4th 392, 81 Cal. Rptr. 2d 586 (1999); People v. Patino,
26 Cal. App. 4th 1737, 32 Cal. Rptr. 2d 345, 349 (1994); People v. Houseley, 6 Cal. App. 4th
947, 8 Cal. Rptr. 2d 431 (1992)(jury must be instructed on limited use of CSAAS testimony);
Steward v. State, 652 N.E.2d 490 (Ind. 1995); State v. DeCosta, 772 A.2d 340, 343 (N.H.
2001)(state's expert testified regarding CSAAS to help the jury understand delayed reporting;
―The defendant argues that Dr. Strapko's extensive testimony regarding the tendency of victims to
delay disclosure of abuse equates to vouching for the truthfulness of the victim. We disagree. Dr.
Strapko testified about child sexual abuse in general and did not offer an opinion as to whether
this victim had been abused. Dr. Strapko testified that she had never met the victim and that she
did not know the facts of this case.‖); State v. Sargent, 738 A.2d 351 (N.H. 1999); State v.
Cressey, 137 N.H. 402, 628 A.2d 696 (1993); State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993);
State v. W.L., 278 N.J. Super. 295, 650 A.2d 1035 (1995); People v. Gregory, 910 N.Y.S. 2d 295
(A.D. 2010)(―Expert testimony regarding CSAAS ‗may be admitted to explain behavior of a
victim that might appear unusual or that jurors may not be expected to understand.‘‖); People v.
Carroll, 300 A.D.2d 911, 753 N.Y.S.2d 148, 153 (2002)(―Here, after the victim had testified,
County Court permitted the People to admit testimony concerning CSAAS to offer explanations
to the jury which might explain why the victim delayed reporting the abuse, i.e., to rebut the
defense's extended attempts on cross-examination to impair the victim's credibility by evidence
80
appropriate because jurors may not understand that delayed reporting, recantation, and
inconsistency are relatively common among sexually abused children.369
California has the following jury instruction on CSAAS: ―You have heard testimony from
[name of expert] regarding child sexual abuse accommodation syndrome. [name of expert]‘s
testimony about child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against (him/her). You may consider this evidence only in
deciding whether or not [alleged victim]‘s conduct was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of (his/her) testimony.‖370
In Eze v. Senkowski,371 the Second Circuit emphasized that when the prosecution offers
expert testimony to explain delayed reporting, inconsistency, recantation, or similar behavior,
defense counsel has ―a heightened responsibility‖ to examine the scientific basis for such
testimony, to consider consulting an expert on such matters, and to evaluate the possible benefit
of offering expert testimony in rebuttal.
§ 6.19 PARENTAL ALIENATION SYNDROME
In contested child custody litigation, one parent sometimes alienates the children from the
other parent.372 Gardner coined the term Parental Alienation Syndrome (PAS) to describe this
phenomenon.373 Gardner defined PAS as follows: ―In this disorder we see not only programming
(‗brainwashing‘) of the child by one parent to denigrate the other parent, but self-created
contributions by the child in support of the preferred parent's campaign of denigration against the
non-preferred parent.‖374
Gardner pointed out that if the child was abused, the child should feel alienated from the
abuser. Gardner wrote, ―When bona fide abuse does exist, then the child's responding hostility is
warranted and the concept of the parental alienation syndrome is not applicable.‖375 One finds
that she had not promptly complained of the abuse, that she had continued to maintain a close
relationship and to initiate contact with defendant, and that she had initially denied the abuse.‖);
Sanderson v. State, 165 P.3d 83 (Wyo. 2007); Frenzel v. State, 849 P.2d 741 (Wyo. 1993).
369
James F. Calvert & Michelle, Munsie-Benson, Public Opinion and Knowledge About
Childhood Sexual Abuse in a Rural Community, 23 Child Abuse & Neglect 671-682 (1999)(in
this study of adults, about half thought a sexually abused child might delay reporting for a long
time; the other half thought disclosure would come within a year).
370
Judicial Council of California, California Criminal Jury Instructions Instruction 1193
(2009-2010).
371
321 F.3d 110 (2d Cir. 2003).
372
C.J.L. v. M.W.B., 879 So. 2d 1169 (Ala. Civ. App. 2003)(parental alienation exists,
although Parental Alienation Syndrome may not pass Frye; the court did not decide the Frye
issue because there was plenty of evidence of alienation to support the trial court's decision);
Noland-Vance v. Vance, 321 S.W.3d 398 (Mo. Ct. App. 2010)(severe alienation in custody case).
373
Richard A. Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and
Legal Professionals (1992) (Cresskill, NJ: Creative Therapeutics).
374
Legal Professionals xv (1992)(Cresskill, NJ: Creative Therapeutics).
375
Legal Professionals xviii (1992)(Cresskill, NJ: Creative Therapeutics)(italics in original).
81
occasional reference to PAS in reported decisions, primarily custody cases.376
PAS is nondiagnostic.377 Faller writes, ―Because the parental alienation syndrome is a
nondiagnostic syndrome, it is only useful for mental health professionals in explaining the
symptom presentation if they know from other information that an abuse allegation is a
deliberately made, false accusation. The syndrome cannot be used to decide whether the child has
been sexually abused. As a consequence, it is of little probative value to courts making decisions
about the presence or absence of sexual abuse.‖378
Because PAS is nondiagnostic, it sheds no light on whether allegations of abuse are true or
false. Any use of PAS for diagnostic purposes is a misuse of the syndrome that does not pass
muster under Frye or Daubert.379
PAS has been criticized.380 The American Psychological Association states, ―There are no
data to support the phenomenon called parental alienation syndrome.‖381 Bruch writes, ―PAS as
developed and purveyed by Richard Gardner has neither a logical nor a scientific basis. It is
rejected by responsible social scientists and lacks solid grounding in psychological theory or
research.‖382 Faller states, ―A fundamental flaw in the syndrome, as described by Gardner is that
it fails to take into account alternative explanations for the child's and mother's behavior,
including the veracity of the allegations or that the mother has made an honest mistake.‖383
376
See Pearson v. Pearson, 5 P.3d 239 (Alaska 2000); In re Paternity of V.A.M.C., 768
N.E.2d 990 (Ind. Ct. App. 2002); Ellis v. Ellis, 840 So. 2d 806 (Miss. Ct. App.)(custody case).
377
Kathleen Coulborn Faller, The Parental Alienation Syndrome: What Is It and What Data
Support It?, 3 Child Maltreatment 100-115, 111 (1998).
378
Support It?, 3 Child Maltreatment 100-115 (1998).
379
C.J.L. v. M.W.B., 879 So. 2d 1169, 1178 (Ala. Civ. App. 2003)(―Although we might, if
faced squarely with the question whether evidence concerning an actual diagnosis of PAS was
admissible under Fry's ‗general acceptance‘ test, be inclined to agree with the mother and find
that PAS had not been generally accepted in the scientific community, we do not need to make
that decision in this case.‖); People v. Fortin, 289 A.D.2d 590, 735 N.Y.S.2d 819, 819
(2001)(―The County Court was correct in determining that the defendant failed in his burden of
demonstrating that ‗Parental Alienation Syndrome‘ was generally accepted in the relevant
scientific communities. In making that determination, the County Court properly considered that
the defendant's sole witness at the Frye hearing [Dr. Richard Gardner] had a significant financial
interest in having his theory accepted.‖); Zafran v. Zafran, 191 Misc. 2d 6, 740 N.Y.S.2d 596
(Supreme Ct. 2002)(granting Frye hearing on PAS).
380
Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong
in Child Custody Cases, 35 Family Law Quarterly 527-552 (2001).
381
American Psychological Association, Violence and the Family 40 (1996)(Washington,
D.C.: American Psychological Association).
382
Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong
in Child Custody Cases, 35 Family Law Quarterly 527-552, at 550 (2001).
383
Support It?, 3 Child Maltreatment 100-115, 112 (1998).
In earlier versions of his book on PAS, Gardner's writing had what seemed to me to be a
sexist slant to it. As he released revised editions over the years, Gardner's writing became more
balanced. See Gardner's rebuttal to Faller's article, Richard A. Gardner, Letter to the Editor, 3
Child Maltreatment 309-312 (1998). See also Faller's rejoinder to Gardner's rebuttal, Cathleen
Coulborn Faller, Response to Gardner, 3 Child Maltreatment 312-313 (1998).
82
§ 6.20 EXPERT TESTIMONY OFFERED TO
REHABILITATE A CHILD'S CREDIBILITY
In sexual abuse litigation, the defense may undermine the child's credibility by pointing out
that the child delayed reporting the alleged abuse, recanted allegations, or was inconsistent.384
Such impeachment is legitimate.385 When defense counsel focuses on delay, recantation, or
inconsistency, however, the question becomes, should the prosecution be allowed to rehabilitate
the child's credibility with evidence that delay, recantation, and inconsistency are relatively
common among abused children? Courts have generally answered in the affirmative.
With occasional exceptions,386 courts permit expert testimony to explain delayed reporting,387
State v. Perry, 218 P.3d 95 (Or. 2009)(―Because defendant's case was built, in part, on the
proposition that the victim's delay in reporting gave rise to an inference that she had not been
abused, [expert testimony on delayed reporting] served a legitimate purpose—to show that there
was a scientific basis for rejecting that proposition—i.e., a treating health care professional would
not necessarily view the delay as a reason to discount the victim's story.‖ The court rejected the
argument that expert testimony on delayed reporting was somehow unfairly prejudicial; expert
testimony is ―scientific‖ evidence and is subject to analysis under test for scientific evidence; trial
court did not err in finding that the testimony met the test for scientific reliability).
The process by which children disclose abuse is discussed in § 6.04. Children's inconsistency
is discussed in § 1.16.
385
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003)(discussing the critical importance of crossexamining victims about prior inconsistent statements); State v. R.E.B., 385 N.J. Super. 72, 895
A.2d 1224, 1233 (2006)(case deals with fresh complaint of rape; ―The victim's delay in reporting
or silence may be considered by the jury in assessing the victim's credibility, but the jury must
also be told that the ‗silence or delay, in and of itself, is not inconsistent with a claim of abuse.‘‖).
386
Sanderson v. Commonwealth, 291 S.W.3d 610 (Ky. 2009); Commonwealth v. Balodis,
560 Pa. 567, 747 A.2d 341 (2000); State v. Anderson, 880 S.W.2d 720 (Tenn. Crim. App.
1994)(court appears to reject expert testimony to rehabilitate credibility; but see dissent).
387
United States v. Antone, 981 F.2d 1059 (9th Cir. 1992); United States v. Nelson, 25 M.J.
110, 112-113 (C.M.A. 1987); United States v. Lips, 22 M.J. 679 (A.F.C.M.R. 1986); People v.
Garcia, 33 Cal. App. 4th 1119, 40 Cal. Rptr. 2d 12 (1995); People v. Patino, 26 Cal. App. 4th
1737, 32 Cal. Rptr. 2d 345 (1994); People v. Housley, 6 Cal. App. 4th 947, 8 Cal. Rptr. 2d 431
(1992); People v. Gilbert, 5 Cal. App. 4th 1372, 7 Cal. Rptr. 2d 660 (1992); People v. Bowker,
203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988)(Child Sexual Abuse Accommodation Syndrome
testimony admitted to explain delay); People v. Gray, 187 Cal. App. 3d 213, 231 Cal. Rptr. 658
(1986); People v. Dunnahoo, 152 Cal. App. 3d 561, 199 Cal. Rptr. 796 (1984); People v.
Hampton, 746 P.2d 947 (Colo. 1987)(adult rape victim; Rape Trauma Syndrome admitted to
explain delay); State v. James W., 87 Conn. App. 494, 866 A.2d 719 (2005); State v. Cardany, 35
Conn. App. 728, 646 A.2d 291 (1994); State v. Christiano, 29 Conn. App. 642, 617 A.2d 470
(1992); Wheat v. State, 527 A.2d 269 (Del. 1987); State v. Diggs, 108 P.3d 1003 (Idaho Ct. App.
2005); State v. Payton, 481 N.W.2d 325 (Iowa 1992); Wimberly v. Gatch, 635 So. 2d 206 (La.
1994); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990); Yount v. State, 99 Md. App.
207, 636 A.2d 50 (1994); Commonwealth v. Rather, 37 Mass. App. Ct. 140, 638 N.E.2d 915
(1994)(expert went too far in this case); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857
(1995); People v. Matlock, 153 Mich. App. 171, 395 N.W.2d 274 (1986); State v. Hall, 406
N.W.2d 503 (Minn. 1987); State v. Myers, 359 N.W.2d 604 (Minn. 1984); State v. Sandberg, 406
N.W.2d 506 (Minn. 1984); State v. Davis, 422 N.W.2d 296 (Minn. Ct. App. 1988); State v.
Calvert, 879 S.W.2d 546 (Mo. Ct. App. 1994); State v. Berosik, 352 Mont. 16, 214 P.3d 776, 782
384
83
recantation,388 and inconsistency.389 Courts have admitted expert testimony to explain why some
(2009)(―The testimony of the State's expert witness gave general information about grooming;
that is, the process of eroding a victim's boundaries to physical touch and desensitizing them to
sexual issues. Her testimony concerned a subject about which lay persons would have little or not
experience. She based her opinions on her experiences and research in the field. The expert
testimony is relevant in that it provided the jury with information about how research and
experience shows abuse of a child oftentimes does not occur all of a sudden. It provided evidence
that young victims sometimes delay in disclosing abuse, disclose the abuse piecemeal, and
described how they react to having been sexually abused. Berosik's defense was that Wanda and
her daughters fabricated their allegations against him because they wanted to be rid of him for
taking away the daughters' new-found freedom and because he was going to expose consensual
sex with a boyfriend, which would result in criminal charges against him. In the fact of this
defense, a jury could conclude the evidence is probative in judging the credibility of the State's
witnesses, including B.W. and R.W., and the decision whether the charges had, or had not, been
proven beyond a reasonable doubt.‖); Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984); State v.
Gonzalez, 150 N.H. 74, 834 A.2d 354 (2003)(error, but not reversible, to admit lay testimony on
delay); State v. Cressey, 628 A.2d 696 (N.H. 1993); People v. Page, 166 A.D.2d 886, 560
N.Y.S.2d 546 (1990); People v. Benjamin R., 103 A.D.2d 663, 481 N.Y.S.2d 827 (1984); State v.
Hall, 330 N.C. 808, 412 S.E.2d 883 (1992); State v. Garfield, 34 Ohio App. 3d 300, 518 N.E.2d
568 (1986); Vasquez v. State, 819 S.W.2d 932 (Tex. Ct. App. 1991); Dunnington v. State, 740
S.W.2d 896 (Tex. Ct. App. 1987) (delay in reporting not beyond ken of lay jurors; therefore,
expert testimony not needed); State v. Noyes, 596 A.2d 3409 (Vt. 1991); State v. Gokey, 154 Vt.
129, 574 A.2d 766 (1990); State v. Hicks, 148 Vt. 459, 535 A.2d 776 (1987); State v. Holland, 77
Wash. App. 420, 891 P.2d 49 (1995); State v. Makela, 66 Wash. App. 164, 831 P.2d 1109 (1992);
State v. Graham, 59 Wash. App. 418, 798 P.2d 314 (1990); State v. Petrich, 101 Wash. 2d 566,
683 P.2d 173 (1984); Griego v. State, 761 P.2d 973 (Wyo. 1988); Scadden v. State, 732 P.2d
1036 (Wyo. 1987).
388
State v. Moran, 151 Ariz. 378, 728 P.2d 248, 251 (1986); State v. Lindsey, 149 Ariz. 472,
720 P.2d 73 (1986); People v. Housley, 6 Cal. App. 4th 947, 8 Cal. Rptr. 2d 431 (1992)(child told
several people about her molestation. At trial, however, child recanted and said nothing
happened; thus defense counsel did not impeach child; nevertheless, because of child's
recantation, it was proper to allow prosecutor to offer expert testimony during state's case-in-chief
to explain reasons for delay and recantation); People v. Bowker, 203 Cal. App. 3d 385, 249 Cal.
Rptr. 886 (1988); Floray v. State, 720 A.2d 1132 (Del. 1998); State v. Borrelli, 227 Conn. 153,
629 A.2d 1105 (1993)(adult victim of domestic violence; expert testimony on Battered Woman
Syndrome admissible to explain victim's recantation); Wheat v. State, 527 A.2d 269 (Del. 1987);
State v. Foret, 612 So. 2d 821 (La. 1993); Yount v. State, 99 Md. App. 207, 636 A.2d 50 (1994);
People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990); State v. Calvert, 879 S.W.2d 546
(Mo. Ct. App. 1994); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983); State v. Madison,
53 Wash. App. 754, 770 P.2d 662 (1989); State v. Shomberg, 709 N.W.2d 370, 382 (Wis.
2006)(―Recantation is a subject clearly beyond the common knowledge or understanding of a jury
or other fact finder. As such, it is an example of an area of ‗specialized knowledge that will assist
the trier of fact to understand the evidence or to determine a fact in issue‘‖); Sanderson v. State,
165 P.3d 83 (Wyo. 2007).
389
State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986); State v. Moran, 151 Ariz. 378, 728
P.2d 248 (1986); People v. Patino, 26 Cal. App. 4th 1737, 32 Cal. Rptr. 2d 345 (1994); People v.
Stark, 213 Cal. App. 3d 107, 261 Cal. Rptr. 479 (1989); State v. Spigarolo, 210 Conn. 359, 556
A.2d 112, cert. denied, 493 U.S. 933 (1989); Russ v. State, 934 So. 2d 527 (Fla. Ct. App. 2006);
People v. Turner, 241 Ill. App. 3d 236, 608 N.E.2d 906 (1993)(not error for experienced police
officer to testify that sexual assault victims may initially deny assault); State v. Black, 537 A.2d
84
abused children are angry,390 why some children want to live with the person who abused them,391
why a victim might appear ―emotionally flat‖ following sexual assault,392 why a child might run
away from home,393 and for other purposes.394
1154, 1156 (Me. 1988)(―The State offered [the expert's] testimony in part to explain timing and
sequencing inconsistencies in John's testimony. Such testimony may be helpful to the jury
because it is not within a lay person's common knowledge that a person who suffers some type of
traumatic experience may have difficulty relating that experi-ence in a chronological, coherent
and organized manner.‖); Commonwealth v. Richardson, 423 Mass. 180, 667 N.E.2d 257 (1996);
State v. Benwire, 98 S.W.3d 168 (Mo. Ct. App. 2003); State v. White, 873 S.W.2d 874 (Mo. Ct.
App. 1994)(case deals with hearsay, not expert testimony, court wrote: ―Although there were
some minor inconsistencies between M.W.'s testimony at trial and his earlier deposition, some
contradictions are to be expected with victims of a young age‖); In re Thompson, 270 Mont. 419,
893 P.2d 301 (1995)(error to admit expert testimony regarding inconsistency when victims were
competent adults); State v. Stowers, 81 Ohio St. 3d 260, 690 N.E.2d 881 (1998); Horn v. Hill,
180 Or. App. 139, 41 P.3d 1127 (2002)(defense counsel was ineffective because counsel failed to
introduce child's recantation); State v. Pettit, 66 Or. App. 575, 675 P.2d 183 (1984); State v. Hall,
946 P.2d 712 (Utah Ct. App. 1997); State v. Cleveland, 58 Wash. App. 634, 794 P.2d 546, 551552 (1990), cert. denied, 111 S. Ct. 1415 (1991); State v. J.W., 520 N.W.2d 291 (Wis. Ct. App.
1994)(not error to reject defense expert who would testify that inconsistency renders witness less
credible).
390
State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986)(defendant argued child was angry due
to proper parental discipline; expert supplied alternative explanation for child's anger at
defendant); State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988)(defendant argued that
fact that adult sexual assault victim was calm after assault indicated no assault; proper to admit
expert testimony that sexual assault victims often seem calm after assault).
391
United States v. Antone, 981 F.2d 1059 (9th Cir. 1992)(approving expert testimony that it
is not unusual for sexually abused children to willingly return to perpetrator); State v. Moran, 151
Ariz. 378, 728 P.2d 248, 253 (1986)(―The defense repeatedly argued that it was incomprehensible
that the daughter would want to return home if her father had molested her‖; proper for expert to
explain ―factors that could lead a victim to recant and attempt to return home‖); People v. Patino,
26 Cal. App. 4th 1737, 32 Cal. Rptr. 2d 345 (1994)(defendant cross-examined child ―about why
she returned to appellant's house the day after the first molestation‖); People v. Carroll, 300
A.D.2d 911, 753 N.Y.S.2d 148, 153 (2002)(―Here, after the victim had testified, County Court
permitted the People to admit testimony concerning CSAAS to offer explanations to the jury
which might explain why the victim delayed reporting the abuse, i.e., to rebut the defense's
extended attempts on cross-examination to impair the victim's credibility by evidence that she had
not promptly complained of the abuse, that she had continued to maintain a close relationship and
to initiate contact with defendant, and that she had initially denied the abuse.‖); People v. Page,
166 A.D.2d 886, 560 N.Y.S.2d 546 (1990); State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651,
655 (1988)(expert could state why child would continue to cooperate with abuser); Chapman v.
State, 18 P.3d 1164, 1172 (Wyo. 2001)(expert testimony on PTSD admissible, inter alia, to
―explain why the 13-year-old victim would continue to venture to Chapman's home even after the
sexual abuse‖).
392
People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131, 138 552 N.Y.S.2d 883 (1990)(expert
testimony on Rape Trauma Syndrome admissible to explain why rape victim did not seem upset
following attack); State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988).
393
State v. Davis, 422 N.W.2d 296 (Minn. Ct. App. 1988).
394
State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994)(adult sexual assault victim; expert
testimony admissible to explain victim's behavior shortly after assault); Bevil v. State, 220 Ga.
App. 1, 467 S.E.2d 586 (1996), cert. denied, 117 S. Ct. 300 (1996)(not error to allow police
85
In State v. Jensen,395 defendant was charged with sexually abusing his eleven-year-old
stepdaughter. The child was acting out at school and demonstrating sexually inappropriate
behavior. Defendant argued that the child fabricated the abuse ―to deflect attention from her own
misbehavior at school and to retaliate against the defendant's strict discipline.‖396 The Wisconsin
Supreme Court approved expert testimony that the child's behavior at school was consistent with
children who have been sexually abused. The expert testimony provided an alternative
explanation for the victim's behavior. The court wrote, ―Because a complainant's behavior
frequently may not conform to commonly held expectations of how a child reacts to sexual
assault, courts admit expert opinion testimony to help juries avoid making decisions based on
misconceptions of victim behavior.‖397
Nonabusive parents sometimes delay reporting the abuse of their children. In People v.
McAlpin,398 defendant was charged with molesting the daughter of the woman he was dating. The
child's mother did not break off her relationship with defendant immediately after learning of the
molestation. Moreover, mother had sexual intercourse with defendant a week following
molestation of the child.399 At trial, defense counsel sought to impeach mother's ―credibility by
strongly implying that her behavior after the alleged incident was inconsistent with that of a
mother who believed her daughter had been molested.‖400 The California Supreme Court
approved expert ―testimony that it is not unusual for a parent to refrain from reporting a known
molestation of his or her child.‖401
Although expert testimony is often admissible to rehabilitate children's impeached credibility,
courts circumscribe such testimony to ensure that the testimony is limited to rehabilitation, and is
not misused as substantive evidence of abuse.402 For example, expert testimony regarding delay
and recantation go far toward rehabilitating credibility. Steps must be taken, however to inform
jurors of the limits of such testimony. Delay does not prove abuse; nor does recantation.
In People v. Bowker,403 the California Court of Appeal offered guidelines for rehabilitation
officer with 17 years' experience to testify as expert that children often have difficulty
remembering specific dates on which abuse happened); State v. Benwire, 98 S.W.3d 618 (Mo. Ct.
App. 2003)(―Testimony was presented that it is not unusual for children who are victims of
sexual abuse to say that they were asleep when it happened or that they dreamed it happened.
Such statements, according to experts, may reflect a young child's confusion about what
happened to them while they were in bed or may act as a defense mechanism to rid themselves of
blame for what happened.‖); People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131, 552 N.Y.S.2d
883 (1990)(testimony on Rape Trauma Syndrome admissible to explain why victim was initially
unwilling to report that defendant was perpetrator); People v. Wellman, 166 A.D.2d 302, 560
N.Y.S.2d 643 (1991)(expert testimony admissible ―to explain why the victim did not immediately
identify defendant as one of her attackers‖).
395
147 Wis. 2d 240, 432 N.W.2d 913 (1988).
396
432 N.W.2d at 918.
397
432 N.W.2d at 918.
398
53 Cal. 3d 1289, 812 P.2d 563, 283 Cal. Rptr. 382 (1991).
399
812 P.2d at 569-570.
400
812 P.2d at 570.
401
812 P.2d at 569.
402
United States v. Johnson, 35 M.J. 17 (C.M.A. 1992)(generalized testimony about
dynamics of incestuous families can confuse jury); People v. Peterson, 450 Mich. 349, 537
N.W.2d 857 (1995); People v. Matlock, 153 Mich. App. 171, 395 N.W.2d 274 (1986); State v.
Perry, 218 P.3d 95 (Or. 2009).
403
203 Cal. App. 3d 385, 249 Cal. Rptr. 886 (1988)..
86
testimony.404 The prosecutor should inform the court and defense counsel of the content of the
expert's testimony. Expert rehabilitation testimony should respond to the mode of impeachment
used by the defense. If defense counsel limits the attack to delayed reporting, expert rehabilitation
testimony should be limited to informing the jury that delayed reporting is not uncommon among
abused children.405 The expert should not embark on wide-ranging testimony about child sexual
abuse.
The Bowker court observed that when experts explain delayed reporting or recantation, there
is little need to mention syndromes such as Child Sexual Abuse Accommodation Syndrome. The
word ―syndrome‖ adds little to the expert's explanation, but mention of syndromes invites
confusion. Thus, the better practice is to avoid mention of syndromes.406
Rehabilitation testimony is less likely to confuse jurors if the testimony describes sexually
abused children as a group, and avoids reference to a particular child.407 Several decisions state
that an expert providing rehabilitation testimony should not refer to a particular child.408 Other
decisions acknowledge that it is sometimes proper for the expert to refer to a specific child.409
If an expert refers to the child in the case on trial, the expert may be cautioned to avoid using
the word ―victim.‖410 Referring to the child as a victim could send a message to the jury that the
expert believes the child was abused. Such a message is improper, however, because the expert's
testimony is offered for the limited purpose of rehabilitating the child's credibility.
The trial judge can instruct the jury that the expert testimony is offered for rehabilitation only,
and ―is not intended and should not be used to determine whether the victim's molestation claim
is true.‖411
404
People v. Housley, 6 Cal. App. 4th 947, 8 Cal. Rptr. 2d 431 (1992); Commonwealth v.
Rather, 37 Mass. App. Ct. 140, 638 N.E.2d 915 (1994).
405
People v. Peterson, 450 Mich. 349, 537 N.W.2d 857, 868, n.12 (1995)(expert ―may not
testify regarding CSAAS characteristics that are not at issue‖).
406
People v. Boker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886, at 890 n.8 (1988).
407
State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986); Commonwealth v. Rather, 37 Mass.
App. Ct. 140, 638 N.E.2d 915 (1994); State v. J.A., 337 N.J. Super. 766 A.2d 782 (2001)(―It is
settled that expert testimony on CSAAS is not admissible to prove a defendant's guilt or
innocence, but it may be used to rehabilitate a child-victim's credibility by explaining the child's
post-assault behavior, including delayed disclosure and recantation.… If the trial court admits the
expert testimony on CSAAS, it must provide a limiting instruction such that the jurors are advised
that they cannot consider the testimony as substantive proof, but only as evidence that supports or
rehabilitates the victim's credibility.… The record is replete with challenges to Nancy's
credibility. These challenges entitled the State to bolster Nancy's credibility through CSAAS
testimony. Moreover, Dr. Taska testified that she never interviewed Nancy. Thus, it was clear that
Dr. Taska was testifying in the abstract in order to explain a sexually-abused child's post-assault
behavior.‖).
408
People v. Gray, 187 Cal. App. 3d 213, 231 Cal. Rptr. 658 (1986); People v. Roscoe, 168
Cal. App. 3d 1093, 215 Cal. Rptr. 45 (1985).
409
State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913, 920 (1988).
410
There is seldom a need for an expert to refer to a child as a victim.
411
People v. Bowker, 203 Cal. App. 3d 385, 249 Cal. Rptr. 886, 891 (1988).
See also People v. Housley, 6 Cal. App. 4th 947, 8 Cal. Rptr. 2d 431, 437 (1992)(―[W]hen
testimony concerning CSAAS is admitted, the court must sua sponte instruct the jury that this
evidence should not be used to determine if the victim's claims are true.‖); State v. J.A., 337 N.J.
Super. 114, 766 A.2d 782 (2001)(―It is settled that expert testimony on CSAAS is not admissible
to prove a defendant's guilt or innocence, but it may be used to rehabilitate a child-victim's
87
Expert testimony to rehabilitate a child's credibility must await impeachment.412 Often,
impeachment occurs during the prosecutor's case-in-chief, as defense counsel cross-examines the
child.413 Sometimes, the attack comes as early as defendant's opening statement, when defense
counsel makes plain that the child should not be believed.
When impeachment occurs during the government's case, rehabilitation testimony is
admissible during the prosecution's case-in-chief.414 When the challenge to a child's credibility
comes during the defense case-in-chief, rehabilitation testimony is offered during the prosecutor's
case-in-rebuttal.415 Courts are comfortable with expert testimony to rehabilitate a child's
credibility because the defense invites the testimony by its attack.
Most but not all decisions hold that rehabilitation expert testimony on delay, recantation,
inconsistency, and similar matters is not subject to Frye or Daubert.416
A child may testify for the prosecution at trial, but recant following the defendant's
conviction. In such circumstances, the defendant may seek a new trial based on the recantation.417
credibility by explaining the child's post-assault behavior, including delayed disclosure and
recantation.… If the trial court admits the expert testimony on CSAAS, it must provide a limiting
instruction such that the jurors are advised that they cannot consider the testimony as substantive
proof, but only as evidence that supports or rehabilitates the victim's credibility.… The record is
replete with challenges to Nancy's credibility. These challenges entitled the State to bolster
Nancy's credibility through CSAAS testimony. Moreover, Dr. Taska testified that she never
interviewed Nancy. Thus, it was clear that Dr. Taska was testifying in the abstract in order to
explain a sexually-abused child's post-assault behavior.‖).
412
Normally, expert testimony on delayed reporting, etc., is unnecessary until the child's
credibility is attacked. But see State v. Cardany, 35 Conn. App. 728, 646 A.2d 291 (1994)
(approving testimony on delayed reporting prior to impeachment).
413
People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995)(―The credibility of the victim
is attacked when the defendant highlights behaviors exhibited by the victim that are also
behaviors within [Child Sexual Abuse Accommodation Syndrome] and alludes that the victim is
incredible because of these behaviors.‖ 537 N.W.2d at 868 n.13).
414
State v. Payton, 481 N.W.2d 325 (Iowa 1992); State v. Black, 537 A.2d 1154, 1156 (Me.
1988); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995).
415
People v. Sanchez, 208 Cal. App. 3d 721, 256 Cal. Rptr. 446, cert. denied, 493 U.S. 921
(1989)(approving expert testimony to rehabilitate child's credibility during state's case-in-chief
following cross-examination of child); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857, 868,
n.13 (1995).
416
United States v. Bighead, 131 F.3d 149 (9th Cir. 1997)(Noonan, J. dissenting)(Judge
Noonan argued that rehabilitation testimony should be subject to Daubert); People v. Peterson,
450 Mich. 349, 537 N.W.2d 857 (1995); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 404
(1990)(Frye does not apply to expert rehabilitation testimony); State v. Stowers, 81 Ohio St. 3d
260, 690 N.E.2d 881 (1998); State v. Marrington, 335 Or. 555, 73 P.3d 911 (2003)(expert
testimony on delay is scientific evidence).
417
United States v. Dogskin, 265 F.3d 682, 685-686 (8th Cir. 2001); United States v.
Giambra, 33 M.J. 331 (C.M.A. 1991); Karvonen v. State, 205 Ga. App. 852, 424 S.E.2d 47
(1992)(victim recanted following trial; new trial should not be granted on basis of post-trial
recantation); State v. Guidry, 647 So. 2d 502, 508 (La. Ct. App. 1994)(―Recantations of trial
testimony should be looked upon with the utmost suspicion. To refuse to grant a new trial on such
a basis is not an abuse of discretion.‖); Commonwealth v. Patton, 458 Mass. 119, 934 N.E.2d
236, 248 (2010)(―It was a matter for the judge to decide how much weight to give the evidence of
recantation. The judge weigned the evidence and concluded, stating on the record, that the
88
Although post-trial recantations are looked upon with suspicion, they occasionally justify a
second trial.418
§ 6.21 EXPERT TESTIMONY THAT A CHILD WAS
TRUTHFUL
In sexual abuse litigation, credibility is critical.419 Courts agree that expert witnesses are not
permitted to testify that a child‘s disclosure was credible or that the child told the truth about
abuse.420 The California Supreme Court wrote, ―The general rule is that an expert may not give an
recantation evidence was less worthy of belief than the videotaped SAIN interivew with the child
because there was no indication ‗how [the child] was spoken to or how she was interviewed by
her parents or the investigator. The judge reasoned that because the recantation interviews were
not videotaped, she could not assess their trustworthiness and reliability as well as she oculd the
videotaped SAIN interview.‖); Poter v. State, 410 N.W.2d 364 (Minn. Ct. App. 1987)(13-yearold victim recanted testimony against her father under pressure from her mother and sister;
defendant then sought postconviction relief; court held original testimony was true, recantation
was false; postconviction relief denied); State v. Miller, 253 Mont. 395, 833 P.2d 1040 (1992);
State v. Mills, 136 N.H. 46, 611 A.2d 1104 (1992)(physical abuse case; four-year-old victim
testified against defendant at trial; following trial, victim recanted and defendant moved for new
trial; trial court denied motion and Supreme Court affirmed); Commonwealth v. Mosteller, 446
Pa. 83, 284 A.2d 786 (1971); Commonwealth v. Loner, 836 A.2d 125 (Pa. Super. Ct. 2003); State
v. Macon, 128 Wash. 2d 784, 911 P.2d 1004 (1996)(child's recantation 15 months after trial did
not warrant new trial).
418
United States v. Taylor, 32 M.J. 684 (A.F.C.M.R. 1991)(defendant won new trial after
stepdaughter recanted her testimony).
419
See United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990)(―It would be an
understatement to say that Michelle's credibility was crucial to the Government's case.‖); United
States v. Snipes, 18 M.J. 172, 176 (C.M.A. 1984)(―As in most child molesting cases, the crucial
issue for the factfinder was the credibility of the victim.‖); Calloway v. State, 520 So. 2d 665, 667
(Fla. Ct. App. 1988)(―credibility becomes the focal issue‖).
420
Morris v. Burnett, 319 F.3d 1254 (10th Cir. 2003); Sistrunk v. Armenakis, 292 F.3d 669
(9th Cir. 2002); United States v. Charley, 189 F.3d 1251, 1265-1266 (10th Cir. 1999)(Dr. Ornelas
offered opinion that girls were sexually abused; ―Dr. Ornelas testified that her examination of the
girls showed no physical evidence of sexual abuse.… The problem with Dr. Ornelas' testimony
lies in the fact that she was permitted to give the jury her unconditional opinion that each of the
girls was in fact sexually abused.… She evidently based this opinion on what the girls said, to her
and others.… [I]f the conclusion was based on the girls' allegations, Dr. Ornelas was merely
vouching for the credibility of the child complainants.‖); United States v. Chiquito, 106 F.3d 311
(19th Cir. 1997)(testimony of social worker on credibility was harmless error where defense was
that child lied); Snoden v. Singletary, 135 F.3d 732 (11th Cir. 1998) (habeas corpus granted
because of expert's testimony on credibility); Hoult v. Hoult, 57 F.3d 1 (1st Cir. 1995); United
States v. Rivera, 43 F.3d 1291 (9th Cir. 1995); United States v. Rosales, 19 F.3d 763 (1st Cir.
1994); United States v. Whitted, 11 F.3d 782, 785-786 (8th Cir. 1993)(―A doctor also cannot pass
judgment on the alleged victim's truthfulness in the guise of a medical opinion, because it is the
jury's function to decide credibility.‖); Bachman v. Leapley, 953 F.2d 440 (8th Cir. 1992); United
States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)(―Neither a lay nor an expert witness has the
foundation or expertise to opine that an individual is or is not telling the truth.‖); United States v.
Diaz, 59 M.J. 79 (C.A.A.F. 2003) (―The limits on expert opinion are rooted in recognition that the
expert lacks ‗specialized knowledge‘ to determine if the victim or witness is telling the truth and
89
respect for the [jury's] exclusive function to weigh evidence and determine credibility.‖); United
States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003); United States v. Marrie, 43 M.J. 35 (C.A.A.F.
1995) (harmless error to admit expert testimony that false allegations by preteen boys are
―extremely rare‖); United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990) (―It is
impermissible for an expert to testify about his or her belief that a child is telling the truth
regarding an alleged incident of sexual abuse.‖); United States v. Suarez, 35 M.J. 374 C.M.A.
1992); United States v. King, 35 M.J. 337 (C.M.A. 1992); United States v. Reynolds, 29 M.J. 105
(C.M.A. 1989); United States v. Arruza, 26 M.J. 234, 237 (C.M.A. 1988); cert. denied, 489 U.S.
1011 (1989); United States v. Tolppa, 25 M.J. 352, 354 (C.M.A. 1987); United States v. Petersen,
24 M.J. 283 (C.M.A. 1987); Thompson v. State, 769 P.2d 997 (Alaska Ct. App. 1989); State v.
Moran, 151 Ariz. 378, 385, 728 P.2d 248, 255 (1986)(―Experts called to testify about behavioral
characteristics that may affect an alleged victim's credibility may not give an opinion of the
credibility of a particular witness. Psychologists and psychiatrists are not, and do not claim to be,
experts at discerning truth. Psychiatrists are trained to accept facts provided by their patients, not
to act as judges of patients' credibility.‖); State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 75-76
(1986); Buford v. State, 368 Ark. 87 (Ark. 2006); Hill v. State, 337 Ark. 219, 988 S.W.2d 487
(1999); Purdie v. State, 2010 WL 3903547 (Ark. Ct. App. 2010)(forensic interviewer testified
child was truthful; conviction reversed); People v. Wittrein, 221 P.3d 1076 (Colo. 2009); People
v. Eppens, 979 P.2d 14 (Colo. 1999)(testimony that child was ―sincere‖ was testimony child was
telling the truth; harmless error to admit the testimony); People v. Oliver, 745 P.2d 222, 225
(Colo. 1987); People v. Whitman, 205 P.3d 371 (Colo. Ct. App. 2007)(two children, aged 6 and
7; ―An expert's opinion is not admissible if the sole purpose of the testimony is to support the
complaining witness's veracity. However, testimony about children's general characteristics and
their behavior is not the same as testimony supporting the veracity of their statements. Such
testimony should be permitted where the expert offers appreciable help to the jury. Expert
testimony about the general behavior of sexual assault victims is admissible.‖); State v. Favoccia,
119 Conn. App. 1, 986 A.2d 1081 (2010)(Psychologist offered expert testimony that child (1)
―accidentally disclosed,‖ (2) fit the characteristics of delayed disclosure, (3) remained polite to
the defendant as a coping mechanism, and (4) attempted to make herself unattractive to
defendant, again as a coping mechanism. This testimony crossed the line into improper testimony
on the victim's credibility; ―opinions other than literal statements as to credibility may constitute
improper expert testimony.‖); Doe v. Carreiro, 94 Conn. App. 626, 638, 894 A.2d 993
(2006)(―Both this court and the Supreme Court have consistently held that no witness, expert or
lay, may give testimony of the witness' opinion of the credibility of another person.‖ It was
harmless error for the witness to answer this question: ―Based on your training and experience,
was it your impression that he was telling the truth?‖); State v. Butler, 36 Conn. App. 525, 651
A.2d 1306, 1309 (1995)(―The determination of the credibility of a witness is solely the function
of the jury.‖); Feller v. State, 637 So. 2d 911 (Fla. 1994); State v. Townsend, 635 So. 2d 949 (Fla.
1994); Tingle v. State, 536 So. 2d 202 (Fla. 1988); Audano v. State, 641 So. 2d 1356, 1360 (Fla.
Ct. App. 1994)(―An expert's direct comment on the credibility of an alleged child victim of a sex
offense is impermissible.‖); O‘Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010)(―Improper
bolstering occurs when a witness gives an opinion as to whether another witness is telling the
truth.‖); Al-Attawy v. State, 289 Ga. App. 570, 657 S.E.2d 552, 554-555 (2008)(―Thus, testimony
that a child's statement or behavior is consistent with a history of sexual abuse is permissible, but
‗our courts have consistently held that expert witnesses may not testify regarding truthfulness or
credibility.‘‖); Morris v. State, 268 Ga. App. 325, 601 S.E.2d 804 (2004); Campbell v. State, 221
Ga. App. 135, 470 S.E.2d 524 (1996)(―The court correctly ruled that neither Groves nor any other
witness could give his opinion that the victim had made false allegations of molestation, because
such evidence addresses the credibility of the witness.‖); Thompson v. State, 233 Ga. App. 364,
504 S.E.2d 234 (1998); State v. Morris, 72 Haw. 527, 825 P.2d 1051 (1992); State v. Batangan,
90
71 Haw. 552, 799 P.2d 48 (1990); Reynolds v. State, 126 Idaho 24, 878 P.2d 198 (Ct. App.
1994)(lay testimony on credibility is error); People v. Robert P., 821 N.E. 2d 1259 (Ill. Ct. App.
2005) (not reversible error in this case); Steward v. State, 652 N.E.2d 490, 492 (Ind. 1995)(―a
witness may not testify that another is or is not telling the truth‖); Head v. State, 519 N.E.2d 151,
153 (Ind. 1988); Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984); State v. Brotherton, 384
N.W.2d 375, 378-379 (Iowa 1986)(testimony that young child could not fantasize about sexual
act was improper indirect testimony regarding child's credibility); State v. Jackson, 239 Kan. 463,
470, 721 P.2d 232, 238 (1986); State v. Davidson, 31 Kan. App. 2d 372, 65 P.3d 1078
(2003)(during the testimony of the child's therapist, the following occurred: ―‗Q. And your
experience with children especially children [J.W.]'s age is it unusual if they were not telling the
truth to remain consistent with what they were replaying to you or to others? A. Children that age
really don't have the ability to tell a lie with consistency over the period of time that we've talked
about. Because I've been involved with it for a year or so that would mean a four or five year old
child telling a lie over and over and over again over the period of a year. It's not developmentally
something that would happen normally. Q. So in your opinion it's not something that he would be
able to do? A. No.' There was no defense objection to this series of questions and answers.… The
admissibility of expert testimony lies within the sound discretion of the district court. However,
an expert witness may not pass on the weight or credibility of evidence, for these matters are
strictly within the province of the jury.… On any retrial, the therapist should not be permitted to
testify that, as a 4-year-old, J.W. was not capable of concocting the allegations. A therapist,
although perhaps through disposition and training more attuned to manufactured evidence, is not
permitted to act as the jury's ‗human lie detector.‘‖); Jenkins v. Commonwealth, 308 S.W.3d 704
(Ky. 2010); Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008)(―Over objection by defense
counsel, Cash was permitted to testify that K.T. was ‗spontaneous‘ and ‗unrehearsed‘ in telling
her story, as opposed to alleged victims who sound ‗rehearsed‘ or ‗canned.‘ Also, over objection,
Cash was permitted to testify that K.T.'s demeanor during the interview, such as anger and
sadness, was ‗consistent with sexual abuse victims.‘ We have consistently held that this type of
testimony in cases involving allegations of sexual abuse is inadmissible on a number of grounds.
First, it is well settled that a witness may not vouch for the credibility of another witness. Clearly
implicit in Cash's description of K.T. as ‗spontaneous‘ and ‗unrehearsed,‘ as opposed to alleged
victims who sound ‗rehearsed‘ or ‗canned,‘ was her opinion that because of K.T.'s manner of
speaking, she was being truthful. Accordingly, this testimony was improper vouching and
inadmissible. Second, we have held that psychologists and social workers are not qualified to
express an opinion that a person has been sexually abused. Third, we have consistently held as
inadmissible, evidence of a child's behavioral symptoms or traits as indicative of sexual abuse
(sometimes referred to as a ‗Child Sexual Abuse Accommodation Syndrome‘) on grounds that
this is not a generally accepted medical concept.‖); Stringer v. Commonwealth, 956 S.W.2d 883,
888 (Ky. 1997), cert. denied, 118 S. Ct. 1374 (1998)(―Generally, a witness may not vouch for the
truthfulness of another witness.‖); State v. Vidrine, 9 So. 3d 1095 (La. Ct. App. 2009)(error to
allow expert to testify regarding statistical probability of false reporting); State v. Ste. Marie, 801
So. 2d 424 (La. Ct. App. 2001)(defense counsel elicited the erroneous testimony); State v.
Lawrence, 752 So. 2d 934 (La. Ct. App. 1999); State v. Folse, 623 So. 2d 59 (La. Ct. App. 1993);
Yount v. State, 99 Md. App. 207, 636 A.2d 50 (1994); Commonwealth v. Federico, 425 Mass.
844, 683 N.E.2d 1035 (1997); Commonwealth v. Trowbridge, 419 Mass. 750, 647 N.E.2d 413,
419 (1995)(―As to the exclusion of the expert's testimony that the mother's animosity could have
influenced the child to make false accusations of sexual abuse, there was no error. Such an
opinion would have impermissibly intruded on the function of the jury to assess the credibility of
the child witness.‖); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995); State v. Miller,
377 N.W.2d 506, 508 (Minn. Ct. App. 1985); Jones v. State, 606 So. 2d 1051 (Miss. 1992);
Elkins v. State, 918 So. 2d 828, 831 (Miss. Ct. App. 2005)(―It is true that, in a child abuse case, a
91
witness's opinion that the alleged victim was telling the truth is of dubious competency and,
therefore, is inadmissible.‖); State v. D.W.N., 290 S.W.3d 814 (Mo. Ct. App. 2009); Gabaree v.
State, 290 S.W.3d 175 (Mo. Ct. App. 2009); State v. Foster, 244 S.W.3d 800, 802 (Mo. Ct. App.
2008)(―Missouri strictly prohibits expert evidence on witness credibility.‖ The physician in this
case diagnosed the child as sexually abused based on the child's history given to the doctor; the
doctor's testimony amounted to an impermissible opinion on the child's credibility requiring
reversal); State v. Price, 165 S.W.3d 568 (Mo. Ct. App. 2005); State v. Calbert, 879 S.W.2d 546
(Mo. Ct. App. 1994); State v. St. Germain, 336 Mont. 17, 24 (Mont. 2007)(―The credibility of a
witness lies exclusively within the province of the trier of fact. In this regard, ‗we generally will
not allow an expert witness to comment on the credibility of the alleged victim.‘‖ Montana has a
narrow exception that allows expert testimony to help the jury understand the credibility of a
sexually abused child); Travelers Indemnity v. Andersen, 983 P.2d 1003 (Mont. 1999); In re
Thompson, 893 P.2d 301, 307 (Mont. 1995)(―While qualified experts possess specialized
knowledge regarding certain aspects of credibility, their capacity to detect lying and coaching is
too limited to justify admission of generalized credibility testimony.‖); Felix v. State, 109 Nev.
151, 849 P.2d 220 (1993); State v. Huard, 138 N.H. 256, 638 A.2d 787 (1994); State v. Alberico,
116 N.M. 156, 861 P.2d 192 (1993); State v. Thaggard, 2005 WL 221236 (N.C. Ct. App. 2005);
In re Butts, 157 N.C. App. 609, 582 S.E.2d 279, 285 (2003)(―An expert witness may not attest to
the victim's credibility, as he or she is in no better position than the jury to assess credibility.‖);
State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010); State v. Keller, 315 Or. 273, 844 P.2d 195
(1993)(court disallowed testimony that child was not coached or led); State v. Middleton, 294 Or.
427, 437 n.11, 657 P.2d 1215, 1221 n.11 (1983); State v. Leahy, 190 Or. App. 147, 78 P.3d 132
(2003)(―A state trooper specializing in child abuse investigation interviewed the victim and
eventually referred her to the Child Abuse Response and Evaluation Services (CARES). At trial,
the referred her to the Child Abuse Response and Evaluation Services (CARES). At trial, the
trooper was asked by the prosecutor on direct examination, ‗Based on your past experience and
training, the fact that you served on the panel, you've done 100 plus investigations, that you've
been certified as an expert in Union County, and that you're certified as a Child Abuse
Investigation instructor, based on your initial interview with the victim, your contact with
[d]efendant, and you attending and listening to the victim at the CARES interview, do you have
an opinion as to the abuse of [the victim]?‘ Defense counsel objected on the ground that the
question called for the witness to ‗comment on the credibility of a person who will be a witness in
this case.‘ After some discussion, the trial court overruled the objection and said that it would
‗decide what weight to give it as we go through.‘ The trooper then testified, ‗I believe that it most
definitely happened exactly the way the victim described it to me.‘ ‗[I]n Oregon[,] a witness,
expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.‘
In fact, expert testimony that is even ‗tantamount‘ to saying that a particular witness is telling the
truth is inadmissible.… Here, the officer's statement, ‗I believe that it most definitely happened
exactly the way the victim described it to me‘ constitutes a direct comment on the credibility of
the victim, another witness, and is not the kind of expert testimony that would assist the
factfinder.…‖ Defendant's conviction reversed); Commonwealth v. Balodis, 560 Pa. 567, 747
A.2d 341 (2000); Commonwealth v. Loner, 415 Pa. Super. 580, 609 A.2d 1376 (1992); In re
Jessica C., 690 A.2d 1357 (R.I. 1997); State v. Haslam, 663 A.2d 902 (R.I. 1995); State v. Dillon,
788 N.W.2d 360 (S.D. 2010); State v. Raymond, 540 N.W.2d 407 (S.D. 1995); Schultz v. State,
957 S.W.2d 52 (Tex. Crim. App. 1997); Chavez v. State, 324 S.W.3d 785 (Tex. Ct. App.
2010)(―Thus, an expert witness may not offer a direct opinion on the truthfulness of a child
complainant‘s allegations. Nor may an expert offer an opinion that the class of persons to which
the complainant belongs, such as child abuse victims, is truthful or worthy of belief. However,
expert testimony that a child exhibits behavioral characteristics that have been empirically shown
to be common among children who have been sexually abused is relevant and admissible under
92
opinion whether a witness is telling the truth, for the determination of credibility is not a subject
beyond common experience that the expert's opinion would assist the trier of fact; in other words,
the jury generally is as well equipped as the expert to discern whether a witness is being
truthful.‖421 The Oregon Supreme Court put it emphatically, ―We have said before, and we will
say it again, but this time with emphasis—we really mean it—no psychotherapist may render an
opinion on whether a witness is credible in any trial conducted in this state. The assessment of
credibility is for the trier of fact and not for psychotherapists.‖422
The prohibition against testimony on truthfulness applies to lay as well as expert witnesses.423
Rule 702.‖); Lopez v. State, 315 S.W.3d 90 (Tex. Ct. App. 2010)(direct comment on credibility is
improper); Fox v. State, 175 S.W.3d 475, 481 (Tex. Ct. App. 2005)(―An expert witness may not
testify a witness is truthful, but an expert may testify the child exhibits symptoms consistent with
sexual abuse.‖); Fuller v. State, 224 S.W.3d 823 (Tex. Ct. App. 2007)(―An expert may not offer a
direct opinion on the truthfulness of a child complainant's allegations. Moreover, an expert is not
permitted to give an opinion that the complainant or class of persons to which the complainant
belongs (such as child sexual assault victims) is truthful.… Moreover, the defendant does not
‗open the door‘ to otherwise inadmissible expert opinion testimony on the truthfulness of a
complainant's allegations by cross-examining the complainant herself or the complainant's
mother.‖); Aguilera v. State, 75 S.W.3d 60 (Tex. Ct. App. 2002); In re G.M.P., 909 S.W.2d 198
(Tex. Ct. App. 1995); Johnson v. State, 933 S.W.2d 195 (Tex. Ct. App. 1996); State v. Kallin,
877 P.2d 138, 140 (Utah 1994); State v. Rimmasch, 775 P.2d 388 (Utah 1989); State v. Sims, 158
Vt. 173, 608 A.2d 1149 (1991); State v. Wetherbee, 156 Vt. 425, 594 A.2d 390 (1991); Taylor v.
Commonwealth, 21 Va. App. 557, 466 S.E.2d 118 (1996); Davison v. Commonwealth, 18 Va.
App. 496, 445 S.E.2d 683 (1994); People v. Anderson, 183 P.3d 649, 650 (Wash. Ct. App.
2008)(―An expert witness may not give opinion testimony as to the truth of a child victim's
testimony or statement of a specific occasion.‖); State v. Kirkman, 126 Wash. App. 97, 107 P.3d
133, 134 (2005)(―We hold that where there were no physical signs of rape and where the State
elicited the examining physician's opinion on sexual abuse allegations, it amounted to a comment
on the victim's credibility. Further, we hold that the detective's testimony detailing a competency
examination he gave to the victim was also an opinion on the victim's credibility. Admission of
these opinions was error of constitutional magnitude.…‖); State v. Jones, 71 Wash. App. 798, 863
P.2d 85, 94 (1993)(―An expert may not testify on an ultimate issue of fact based upon the expert's
perception of the witness's veracity.‖); State v. Alexander, 64 Wash. App. 147, 822 P.2d 1250,
1254 (1992); State v. Madison, 53 Wash. App. 754, 770 P.2d 662 (1989); State v. Charles, 183
W. Va. 641, 398 S.E.2d 123, 141 (1990); State v. Huntington, 575 N.W.2d 268 (Wis. 1998); State
v. Tutlewski, 231 Wis. 2d 379, 605 N.W.2d 561 (Ct. App. 1999)(victim of rape and her husband
were intellectually handicapped; their former special education teacher testified, ―I don't think it
is within their capabilities to lie or be deceitful.‖ It was reversible error to allow this testimony);
State v. Williams, 204 Wis. 2d 111, 552 N.W.2d 898 (Ct. App. 1996); Seward v. State, 76 P.3d
805 (Wyo. 2003)(forensic interviewer's testimony about how she validated the child's credibility
during interview was improper); Frenzel v. State, 849 P.2d 741 (Wyo. 1993).
421
People v. Coffman, 34 Cal. 4th 1, 96 P.3d 30, 17 Cal. Rptr. 3d 710, 785 (2004).
422
State v. Milbradt, 305 Or. 621, 756 P.2d 620, 624 (1988).
423
United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)(―Neither a lay nor an expert
witness has the foundation or expertise to opine that an individual is or is not telling the truth.‖);
Doe v. Carreiro, 94 Conn. App. 626, 638, 894 A.2d 993 (2006)(―Both this court and the Supreme
Court have consistently held that no witness, expert or lay, may give testimony of the witness'
opinion of the credibility of another person.‖ It was harmless error for the witness to answer this
question: ―Based on your training and experience, was it your impression that he was telling the
truth?‖); Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009)(―Machado claims that the
93
A lay witness should not be asked to comment on the credibility of another witness.424
A small body of empirical research supports the conclusion that neither lay nor expert
witnesses should opine on a child‘s credibility.425 Adults are not proficient at detecting lying in
children.426 There is no psychological test that detects lying.427 In Jennette v. State,428 the Georgia
Court of Appeals rejected expert testimony offered by the defense on so-called Lying Child
Syndrome.429
Experts may not discuss credibility in terms of the statistical likelihood that children tell the
truth about abuse.430 In Powell v. State,431 the Supreme Court of Delaware disapproved the
trial court erred by allowing A.T.'s mother to testify that A.T. was telling the truth, thereby
improperly bolstering A.T.'s testimony. Machado's trial counsel failed to object to this testimony
as improper bolstering at trial. As a result, any objection on that basis was waived.‖); Reynolds v.
State, 126 Idaho 24, 878 P.2d 198 (Ct. App. 1994); State v. Hallett, 796 P.2d 701, 707 (Utah Ct.
App. 1994).
424
State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002); State v. Sells, 82 Conn. App. 332,
844 A.2d 235 (2004)(in this case, defense counsel opened the door to prosecutor's question about
credibility).
425
Robin S. Edelstein, Tanya L. Luten, Paul Ekman, & Gail S. Goodman, Detecting Lies in
Children and Adults, 30 Law and Human Behavior 1-10, 7 (2006) (empirical research to see
whether adults could detect deception; ―Overall lie-detection accuracy in this study was 50% for
both children's and adults' statements. This finding is consistent with previous research, which
indicates that untrained observers rarely exceed change performance in lie detection.‖); Steve
Herman, Improving Decision Making in Forensic Child Sexual Abuse Evaluations, 29 Law and
Human Behavior 87-120 (2005)(―there is now considerable evidence indicating that even
experienced clinicians have virtually no ability to reliably detect the difference between true and
false narratives of past events told by children who give false reports or develop false memories
as a result of suggestive interviewing. Furthermore, a significant body of research evidence
indicates that, with few exceptions, most people (including most law enforcement personnel and
most [mental health professionals]) have little ability to detect motivated lying by adults.‖ p. 96.).
426
Robin S. Edelstein, Tanya L. Luten, Paul Ekman, & Gail S. Goodman, Detecting Lies in
Children and Adults, 30 Law and Human Behavior 1-10, 7 (2006) (empirical research to see
whether adults could detect deception; ―Overall lie-detection accuracy in this study was 50% for
both children's and adults' statements. This finding is consistent with previous research, which
indicates that untrained observers rarely exceed change performance in lie detection.‖); J. Zoe
Klemfuss & Stephen J. Ceci, Normative Memory Development and the Child Witness. In
Kathryn Kuehnle & Mary Connell (Eds.), The Evaluation of Child Sexual Abuse Allegations 153180, at 171 (2009)(―There are ver few cases in which adults, even highly experienced experts, can
detect whether a child‘s testimony has been tampered with by another adult.‖).
427
Irit Hershkowitz, Sara Fisher, Michael E. Lamb & Dvora Horowitz, Improving Credibility
Assessments in Child Sexual Abuse Allegations: The Role of the NICHD Investigative Interview
Protocol, 31 Child Abuse & Neglect 99-110, at 100 (2007)(―Although some systematic tolls for
assessing credibility have been developed, they have not been empirically validated.‖).
428
197 Ga. App. 580, 3908 S.E.2d 734 (1990).
429
398 S.E.2d at 737. The court ruled the jury did not need the help of an expert to determine
credibility. I am unaware of any literature supporting the reliability of a ―Lying Child Syndrome.‖
430
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003) (prosecution expert stated that only 1 of
the 50 to 100 children evaluated had lied; objectionable); Snowden v. Singletary, 135 F.3d 732
(11th Cir. 1998); United States v. Brooks, 64 M.J. 325, 326 (C.A.A.F. 2007)(―he testified about
the percentage of false claims of sexual abuse made by children. Although Brooks failed to object
to the testimony about which he now complains, we conclude that the military judge plainly erred
94
testimony of an expert who stated that ninety-nine percent of the children receiving treatment in
programs where the expert worked told the truth.432 The court stated that such testimony violated
the rule that an ―expert may not directly or indirectly express opinions concerning a particular
witness' veracity or attempt to quantify the probability of truth or falsity of either the initial
allegations of abuse or subsequent statement.‖433 In another decision, Wheat v. State,434 the
Delaware Supreme Court held that an expert may not evaluate a victim's credibility in terms of
statistical probability. The Wheat court wrote that to the extent expert testimony ―attempts to
quantify the veracity of a particular witness or provide a statistical test for truth telling in the
courtroom, it is clearly unacceptable.‖435
Failure to object to testimony on credibility waives objection unless admitting the testimony
is plain error.436 Admission of testimony on credibility, although error, does not invariably
by allowing testimony that was the functional equivalent of vouching for the credibility or
truthfulness of the victim.‖); State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248, 252 (1986)(―Nor
may the expert's opinion as to credibility be adduced indirectly by allowing the expert to quantify
the percentage of victims who are truthful in their initial reports despite subsequent recantation.‖);
State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 74, 76 (1986); People v. Tillery, 2009 WL
3128744 (Colo. Ct. App. 2009)(―CRE 608(1)(1) does not permit a witness to opine that a child
victim was telling the truth when the child reported a particular sexual assault by a defendant.
‗[H]owever … an opinion as to the credibility of the victim is admissible if that testimony relates
to general characteristics only. It is proper, for instance, to elicit an opinion as to whether
children, in general, have the sophistication to lie about having experienced a sexual assault.‘‖);
Floray v. State, 720 A.2d 1132 (Del. 1998); State v. Vidrine, 9 So. 3d 1095 (La. Ct. App.
2009)(error to allow expert to testify regarding statistical probability of false reporting); State v.
Wilson, 121 Or. App. 460, 855 P.2d 657 (1993)(the state's expert was asked by the prosecutor to
indicate the percentage of founded and unfounded cases evaluated at the expert's child abuse
evaluation center. The court of appeal stated that the statistical information had ―little relevance
regarding the issue of whether this claim of sexual abuse was valid.‖ 855 P.2d at 660.
Nevertheless, the court ruled that the expert's testimony did not amount to an impermissible
comment on the child's credibility); Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 795
N.E.2d 1230, 1236 (2003)(―Expert testimony that abused children often delay reporting the abuse
… informs the jury that the victim's failure to disclose in a timely fashion does not necessarily
exonerate the defendant without suggesting that the particular child witness in the case was or
was not abused. By contrast, the defendant's proffered expert testimony that children embroiled in
family controversy often fabricate allegations of sexual abuse essentially brands the class of
which the alleged victim is a member as untrustworthy, and directly encourages the jury to
disbelieve the specific child witness before them.‖); Commonwealth v. Rather, 37 Mass. App. Ct.
140, 638 N.E.2d 915 (1994); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995);
Aguilera v. State, 75 S.W.3d 60 (Tex. Ct. App. 2002); State v. Iorg, 801 P.2d 938 (Utah Ct. App.
1990); State v. Kinney, 762 A.2d 833 (Vt. 2000)(―We do not, however, have the same view of the
expert's testimony about the incidence of false reporting by rape victims.‖ 762 A.2d at 843. ―Dr.
Tyler testified that at least 98% of the rapes reported actually occurred.‖ 762 A.2d at 844. ―Dr.
Tyler's testimony on the rate of false reporting clearly went over the line.‖ 762 A.2d at 844).
431
527 A.2d 276 (Del. 1987).
432
527 A.2d at 278-279.
433
527 A.2d at 279 (quoting Wheat v. State, 527 A.2d 269, 275 (Del. 1987)).
434
527 A.2d 269, 274 (Del. 1987).
435
527 A.2d at 275.
436
People v. Coffman, 34 Cal. 4th 1, 96 P.3d 30, 17 Cal. Rptr. 3d 710 (2004); People v.
Eppens, 979 P.2d 14 (Colo. 1999); Toccaline v. Commissioner of Correction, 80 Conn. App. 792,
95
warrant a mistrial or reversal on appeal.437 If it is the defense attorney who questions a witness
837 A.2d 849 (2004)(habeas corpus case based on claim of ineffective assistance of counsel;
defense counsel did not object to improper expert testimony on credibility of victim; trial defense
counsel testified at habeas proceeding that there was a tactical reason for not objecting, thus
failure to object was not ineffective assistance of counsel); Gray v. State, 640 So. 2d 186 (Fla. Ct.
App. 1994); Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009)(―Machado claims that
the trial court erred by allowing A.T.'s mother to testify that A.T. was telling the truth, thereby
improperly bolstering A.T.'s testimony. Machado's trial counsel failed to object to this testimony
as improper bolstering at trial. As a result, any objection on that basis was waived.‖); Krumm v.
State, 793 N.E.2d 1170 (Ind. Ct. App. 2003); Castro v. State, 241 Ga. App. 546, 527 S.E.2d 12
(1999); Stringer v. Commonwealth, 956 S.W.2d 833 (Ky. 1997), cert. denied, 118 S. Ct. 1374
(1998); State v. Murphy, 785 So. 2d 197 (La. Ct. App. 2001); State v. D.W.N., 290 S.W.3d 814
(Mo. Ct. App. 2009)(not plain error when expert testified child was truthful; there is a dissent);
Lattimer v. State, 925 So. 2d 206 (Mo. Ct. App. 2006)(error waived due to failure to object);
State v. Gardner, 318 Mont. 436, 80 P.3d 1262, 1270 (2003)(witness testified that child's ―story
was consistent in detail, and she was very forthright, honest and truthful as far as I was
concerned.‖ Defendant objected, ―the District Court sustained Gardner's objection regarding the
alleged inadmissible testimony and admonished the jury to disregard it. Because Gardner did not
further object or move for a mistrial, the District Court was not placed on notice that Gardner
believed the error had not been cured, and was not given an opportunity to correct itself.
Gardner's acquiescence in the District Court's admonition constitutes a waiver of his right to
assert error regarding this issue on appeal. Thus, we decline to consider it.‖); State v. Wallace,
635 S.E.2d 455 (N.C. Ct. App. 2006)(admission of testimony not plain error on these facts); State
v. Kirkman, 126 Wash. App. 97, 107 P.3d 133 (2005); State v. Stevens, 58 Wash. App. 478, 794
P.2d 38, 46-47 (1990)(defendant's failure to object to testimony on credibility waived objection);
In State v. Wood, 194 W. Va. 525, 460 S.E.2d 771, 782 (1995) (the state's expert arguably
crossed the line into improper testimony on credibility. Defense counsel did not object. Moreover,
on cross-examination, the expert admitted that if the child lied during the expert's interview of the
child, there would be no way to detect the lie. The West Virginia Supreme Court ruled that the
expert's admission neutralized ―her prior testimony which suggested that she believed Betty A.'s
allegations to be true.‖).
437
United States v. Toledo, 985 F.2d 1462 (10th Cir. 1993); Buford v. State, 368 Ark. 87
(Ark. 2006); Purdie v. State, 2010 WL 3903547 (Ark. Ct. App. 2010)(―we hold that the
admission of the forensic examiner‘s opinion that the victim‘s testimony was not fabricted or
coached was an abuse of discretion.‖); Doe v. Carreiro, 94 Conn. App. 626, 638, 894 A.2d 993
(2006)(It was harmless error for the witness to answer this question: ―Based on your training and
experience, was it your impression that he was telling the truth?‖); State v. Arrington, 251 Kan.
447, 840 P.2d 747 (1992) (victim was mentally retarded; although issue was close, it was not
error for expert to state that child was not ―capable of being purposely deceitful‖); State v.
Archie, 273 Neb. 612, 733 N.W.2d 513 (2007)(on cross-examination of interviewer, defense
counsel probed reason why interviewer did not use a truth-lie ceremony when questioning the
victim; on redirect, prosecutor asked whether the interviewer had any concerns that the child was
not telling the truth; it was error to allow this testimony; but the error was harmless); State v.
Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005); State v. Abraham, 107 Or. App. 212, 811
P.2d 658 (1991)(a police officer who interviewed the child was being cross-examined by defense
counsel. During the cross-examination, the officer stated, ―There was no doubt in my mind that
this child was giving us truthful, accurate.…‖ Defense counsel objected to the officer's statement
and moved for mistrial. The trial judge denied the motion. On appeal, the court wrote: ―We are
also not persuaded that the trial court abused its discretion when it denied defendant's motion for
a mistrial. [The officer's] unresponsive answer was promptly stricken. Defendant had cross-
96
about a child's credibility, a reviewing court is unlikely to find reversible error.438
It is not always easy to tell when an expert crosses the line into forbidden testimony on
truthfulness.439 An expert need not say, ―I believed the child‖ to violate the prohibition. An expert
examination on the subject matter, and there is no suggestion that the prosecutor was guilty of
intentional misconduct. Defendant did not request a curative instruction. The trial judge was in
the best position to assess potential prejudice.‖ 811 P.2d at 660.); State v. Wood, 194 W. Va. 525,
460 S.E.2d 771 (1995).
438
Snow v. State, 228 Ga. App. 649, 492 S.E.2d 564 (1997)(defense counsel questioned
investigator in such a way as to invite the investigator to say he believed the child; by inviting the
investigator's testimony, the defendant could not complain); State v. Snider, 266 Wis. 2d 830, 668
N.W.2d 784 (2003)(defense attorney had tactical reason to ask detective whether the detective
believed the child; attorney was attempting to show that the detective already had his mind made
up that the victim was abused).
439
Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005)(―Whether Dr. Inhoffe's testimony
amounted to impermissible vouching is a close call. Nevertheless, viewed in its entirety, we
cannot conclude that her testimony violated the general due process standard outlined in Supreme
Court precedent. Dr. Inhoffe's testimony centered around her medical examination of the child
and statements made by the child showing precocious familiarity with the sexual function. It was
Dr. Inhoffe's opinion, taken in conext, that the child's statements of excessive sexual knowledge
were consistent with abuse. The expert did not opine or testify that Parker committed sexual
abuse. The two ‗statements‘ of opinion that sexual abuse took place consisted of only an
affirmative ‗yes‘ and, taken in the context of her testimony as a whole, refer back to her view that
the child had excessive sexual knowledge consistent with previous abuse.… There is no bright
line test for when such testimony crosses the line into the jury's realm.… Dr. Inhoffe was not
asked to provide opinion testimony about the child's propensity to lie or tell the truth.… [E]xperts
may testify about symptoms consistent with sexual abuse without improperly vouching for the
witness's credibility. Viewed in context, Dr. Inhoffe's testimony indicated that the information she
gained through examination of the child was consistent with a person who suffered sexual
abuse.‖); People v. Tillery, 2009 WL 3128744 (Colo. Ct. App. 2009)(―CRE 608(1)(1) does not
permit a witness to opine that a child victim was telling the truth when the child reported a
particular sexual assault by a defendant. ‗[H]owever … an opinion as to the credibility of the
victim is admissible if that testimony relates to general characteristics only. It is proper, for
instance, to elicit an opinion as to whether children, in general, have the sophistication to lie
about having experienced a sexual assault.‘‖); People v. Whitman, 205 P.3d 371 (Colo. Ct. App.
2007)(two children, aged 6 and 7; ―An expert's opinion is not admissible if the sole purpose of the
testimony is to support the complaining witness's veracity. However, testimony about children's
general characteristics and their behavior is not the same as testimony supporting the veracity of
their statements. Such testimony should be permitted where the expert offers appreciable help to
the jury. Expert testimony about the general behavior of sexual assault victims is admissible.‖);
State v. Favoccia, 119 Conn. App. 1, 986 A.2d 1081 (2010)(Psychologist offered expert
testimony that child (1) ―accidentally disclosed,‖ (2) fit the characteristics of delayed disclosure,
(3) remained polite to the defendant as a coping mechanism, and (4) attempted to make herself
unattractive to defendant, again as a coping mechanism. This testimony crossed the line into
improper testimony on the victim's credibility; ―opinions other than literal statements as to
credibility may constitute improper expert testimony.‖); Johnson v. State, 274 Ga. App. 69, 616
S.E.2d 848, 851 (2005)(―But Davis did not directly state that she believed the victim's allegations
of sexual abuse, and she did not testify concerning the ultimate issue of whether the victim had, in
fact, been sexually abused. She simply acknowledged that ‗some things came up‘ during the
interview with the victim that she presumed to be true. In addition, her testimony concerning her
97
belief about the victim's statements concerning ‗love juice‘ were ambiguous as to what she
actually believed.‖); Morris v. State, 268 Ga. App. 325, 601 S.E.2d 804 (2004)(psychologist who
interviewed child was asked, ―Was there anything in the demeanor of [the victim] that allowed
you to rule out abuse in this case?‖; ―Here, the doctor was not asked to directly comment on the
veracity of the victim. She did not testify that she believed the victim had been sexually abused.
The testimony regarding the victim's demeanor did not express an impermissible opinion on an
ultimate issue of whether the victim was sexually abused.‖); Geiger v. State, 573 S.E.2d 85 (Ga.
Ct. App. 2002); Edwards v. State, 253 Ga. App. 479, 559 S.E.2d 506 (2002); Carter v. State, 754
N.E.2d 877 (Ind. 2000)(psychologist testified that children with autism generally have difficulty
lying; expert came close to forbidden testimony, but did not cross the line); Krumm v. State, 793
N.E.2d 1170 (Ind. Ct. App. 2003); State v. Allen, 565 N.W.2d 333 (Iowa 1997); Bell v.
Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008)(―Over objection by defense counsel, Cash was
permitted to testify that K.T. was ‗spontaneous‘ and ‗unrehearsed‘ in telling her story, as opposed
to alleged victims who sound ‗rehearsed‘ or ‗canned.‘ Also, over objection, Cash was permitted
to testify that K.T.'s demeanor during the interview, such as anger and sadness, was ‗consistent
with sexual abuse victims.‘ We have consistently held that this type of testimony in cases
involving allegations of sexual abuse is inadmissible on a number of grounds. First, it is well
settled that a witness may not vouch for the credibility of another witness. Clearly implicit in
Cash's description of K.T. as ‗spontaneous‘ and ‗unrehearsed,‘ as opposed to alleged victims who
sound ‗rehearsed‘ or ‗canned,‘ was her opinion that because of K.T.'s manner of speaking, she
was being truthful. Accordingly, this testimony was improper vouching and inadmissible.
Second, we have held that psychologists and social workers are not qualified to express an
opinion that a person has been sexually abused. Third, we have consistently held as inadmissible,
evidence of a child's behavioral symptoms or traits as indicative of sexual abuse (sometimes
referred to as a ‗Child Sexual Abuse Accommodation Syndrome‘) on grounds that this is not a
generally accepted medical concept.‖); Commonwealth v. Trowbridge, 419 Mass. 750, 647
N.E.2d 413 (1995); Hobgood v. State, 926 So. 2d 847, 854 (Miss. 2006)(5-year-old victim of anal
rape; child's therapist testified as expert on sexual abuse; prosecutor asked whether therapist
found child credible; over defense objection, therapist said yes, and explained that she found the
child credible because he remained consistent in his description for over a year and because there
was medical evidence; approving this testimony, the Supreme Court wrote, ―In the present case,
Dettoto never stated that the victim was telling the truth. Rather she explained the consistency of
the accounts he made to individuals, at different times, not in the presence of the others, and
found them to be credible. Hobgood contends that Dettoto's testimony denied the jury its role as
judge of credibility. We disagree. The jury heard Dettoto's testimony along with that of five other
witnesses. The trial court thoroughly and correctly instructed the jurors regarding their role as the
sole judges of the credibility of the witnesses and the weight their testimony deserved. He
specifically stated they ‗should consider each expert opinion received in evidence in this case and
give it such weight as you may think it deserves.‘ We hold that allowing Detotto's comment
regarding the victim's credibility was not error, when viewed in the totality of her testimony. She
did not cross the line and say that he was telling the truth.‖); Williams v. State, 270 So. 2d 727
(Miss. Ct. App. 2007)(the prosecutor asked the forensic interviewer whether the victim was
―believable.‖ The Court of Appeal, in a decision that seems dubious, ruled that while the question
was improper, the answer was not. The interviewer answered, ―Based on Jane's disclosure and
based upon her reported experiences of sexual abuse, my finding was her report was consistent
with a child who had been sexually abused.‖ With respect for the court, the decision that the
interviewer's answer was proper seems wrong for two reasons. First, most forensic interviewers
are not qualified to render opinions on children's credibility, or on whether a child's statements
are consistent with the truth. Second, the answer—when coupled with the question—is clearly an
opinion that the child was credible.); Elkins v. State, 918 So. 2d 828, 831 (Miss. Ct. App. 2005)
98
treads close to the line when the expert focuses on the child's truthfulness.440 In State v.
Rimmasch,441 a prosecution expert stated, ―In my opinion, [a child] does not give this kind of
information with the amount of details and the amount of clarity unless [the child] has
experienced [abuse].‖442 Later, the expert opined that the child could only lose by lying about the
abuse. The Utah Supreme Court concluded, ―The prosecutor, in eliciting this testimony and
focusing on the reasons why Dr. Tyler thought the daughter was telling the truth, crossed the line
and elicited a direct opinion on the daughter's truthfulness at the time she made her allegations of
abuse.‖443
(―It is true that, in a child abuse case, a witness's opinion that the alleged victim was telling the
truth is of dubious competency and, therefore, is inadmissible. However, Mackey [a child
interview specialist] never opined that P.B. was truthful during the interview. Rather, she opined
that P.B.'s behavior and demeanor were consistent with those of children who had been sexually
abused, that children who have been coached to lie generally are unable to keep their stories
straight, and that P.B. related the same facts consistently throughout the interview. While an
expert may not opine that an alleged child sex abuse victim has been truthful, the scope of
permissible expert testimony under Rule 702 includes an expert's opinion that the alleged victim's
characteristics are consistent with those of children who have been sexually abused.‖); State v.
Remme, 173 Or. App. 546, 23 P.3d 374 (2001); State v. Rogers, 992 P.2d 229 (Mont. 1999);
State v. DeCosta, 772 A.2d 340 (N.H. 2001); State v. Salazar, 139 N.M. 603, 136 P.3d 1013,
1018 (2006) (―Defendant refers to that portion of the expert's testimony where she stated that the
victim was ‗rare‘ in the level of his ‗forthrightness‘ and ‗seriousness‘ when he told her about the
abuse. The expert was not vouching for the truthfulness of the victim's report. Rather, reading her
words in context, it was clear that she was explaining that it was rare for her to be able to speak
intelligently in an adult-like fashion with a patient. Her comments related to the victim's manner
in reporting to her, not his honesty or truthfulness.‖); Warner v. State, 144 P.3d 838, 860 (Okla.
Crim. App. 2006)(―As for Rebecca Price, a twenty-one year employee with the Department of
Human Services, Appellant asserts she improperly bolstered and vouched for the credibility of
Charvon Warner and Detective Willy Edwards. Argument or evidence is impermissible vouching
only if the jury could reasonably believe that the prosecutor, or in this case a witness, is indicating
a personal belief in a witness's credibility, either through explicit personal assurances of the
witness's veracity or by implicitly indicating that information not presented to the jury supports
the witness's testimony.… Here, Price testifies that when she interviewed Charvon Warner he was
six years old. She gave no opinion on the truthfulness of his statements. As for her testimony
regarding Detective Edwards, she testified she had observed Detective Edwards and the way he
interviewed suspected child abuse victims. She said she thought he used proper techniques in
trying to get information from children. Ms. Price's testimony was not improper vouching for
Detective Edwards as it addressed only the procedures he used, not the veracity or credibility of
any responses he received in his interviews.‖); Darling v. State, 262 S.W.3d 920, 924 (Tex. Ct.
App. 2008)(―A trial court does not err when it admits an expert witness' opinion testimony that a
child did not exhibit indications of having been coached to make a false accusation of sexual
abuse. Such testimony does not constitute a comment on the child's ultimate truthfulness.‖); State
v. Rimmasch 775 P.2d 388, 392 (Utah 1989)(―It can be a subtle business to determine whether a
particular opinion, based only in part on an appraisal of veracity, runs afoul of Rule 608(a) and is
therefore flatly inadmissible.‖); State v. Zastrow, 241 Wis. 2d 573, 624 N.W.2d 421 (Ct. App.
2001).
440
United States v. Dollente, 45 M.J. 234 (C.A.A.F. 1996); State v. Rimmasch, 775 P.2d 388,
393 (Utah 1989).
441
775 P.2d 388 (Utah 1989).
442
775 P.2d at 392-393.
443
775 P.2d at 393.
99
The Rimmasch court then turned its attention to the testimony of three other prosecution
experts, writing,
Rimmasch contends that the three other experts also gave testimony that
was not admissible under Rule 608(a). This testimony by Dr. Palmer, Dr.
McManemin, and Mr. Harrison expressed opinions on whether the
daughter had, in fact, been abused. These experts based their opinions, at
least in part, on their appraisal of the veracity of the daughter during
interviews, a fact they communicated to the trial court. We have
reviewed the testimony of these experts and conclude that while it
resembles Dr. Tyler's in some particulars, it does not focus upon the
truthfulness of the daughter's statements to the same degree. We
therefore conclude that it does not cross the line from being a statement
of the basis of an expert opinion on abuse to being a comment on
truthfulness on a particular occasion.444
Although experts may not offer testimony that goes directly to credibility, permissible expert
testimony is not rendered improper simply because it indirectly bolsters a child's credibility.445
Occasionally, a mental health professional providing therapy for a child testifies that the child
was referred to the professional for treatment of the effects of sexual abuse. Is such testimony in
essence a statement that the child was telling the truth? A number of decisions appear to say
yes.446 The Tenth Circuit disagreed in United States v. Charley,447 where the court wrote, ―We
note that some courts have held that a counselor's testimony that ‗[the alleged victim] was
referred to me for sexual abuse recovery counseling‘ constitutes impermissible vouching and is
therefore inadmissible. We disagree with the analysis of these courts. A statement by a counselor
that the alleged victim was referred for sexual abuse counseling is not necessarily the same as a
statement that the victim is telling the truth, or even that the victim was in fact sexually abused,
and therefore does not necessarily rise to the level of impermissible vouching.‖448
444
775 P.2d at 393.
United States v. Azure, 801 F.2d 336 (8th Cir. 1986); United States v. Tolppa, 25 M.J.
352, 354 (C.M.A. 1987); People v. Carter, 919 P.2d 862, 866 (Colo. Ct. App. 1996); Tingle v.
State, 536 So. 2d 202 (Fla. 1988); DeMotte v. State, 555 N.E.2d 1336, 1338–1339 (Ind. Ct. App.
1990)(―expert testimony ‗as to whether or not the child is prone to exaggerate or fantasize‘ is
admissible:‖ trial court abused discretion by denying defendant opportunity to impeach child's
credibility ―by attacking her ability to recollect and describe what happened to her without
fantasizing or exaggerating‖); State v. Wilson, 247 Kan. 87, 795 P.2d 336, 343–344
(1990)(expert did not cross line into forbidden testimony on credibility when expert testified that
consistency and detail of child's description of abuse, combined with child's behavior, made
coaching unlikely); State v. Neswood, 132 N.M. 505, 51 P.3d 1159, 1164 (2002); State v. Jones,
99 N.C. App. 412, 393 S.E.2d 585, 588-589 (1990)(not error for prosecutor to ask witness
whether complainant had mental disorder that would cause her to fantasize about sexual abuse ―in
general‖); State v. Pierce, 689 A.2d 1030 (R.I. 1997); Rivera v. State, 840 P.2d 933, 939 (Wyo.
1993)(―Even though the [expert] testimony did corroborate the victims, and one effect of
corroboration is to support or bolster the credibility of the witness, that does not amount to a
violation of the rule against vouching for credibility.‖).
446
Commonwealth v. McCaffrey, 36 Mass. App. 583, 633 N.E.2d 1062 (1994); State v.
Haslam, 663 A.2d 902 (R.I. 1995).
447
189 F.3d 1251 (10th Cir. 1999).
448
189 F.3d 1251, 1269 n.25.
445
100
In Morris v. State,449 a psychotherapist interviewed a child during the course of a sexual
abuse investigation. At trial, the therapist was asked by the prosecutor, ―Was there anything in the
demeanor of [the victim] that allowed you to rule out abuse in this case?‖ Over objection, the
therapist stated, ―No, sir. There was—there was nothing in her demeanor that would rule [it] out.‖
The Georgia Court of Appeal wrote, ―The doctor was not asked to directly comment on the
veracity of the victim. She did not testify that she believed the victim had been sexually abused.
The testimony regarding the victim's demeanor did not express an impermissible opinion on an
ultimate issue of whether the victim was sexually abused. Accordingly, the doctor's testimony did
not constitute an impermissible statement of opinion regarding the victim's truthfulness.…‖450
Some courts employ a version of Rule 608(a) of the Federal Rules of Evidence to reject
expert testimony on credibility.451 Rule 608(a) provides that the credibility of a witness may be
supported by testimony from a character witness who testifies in the form of reputation or
opinion.452 Under Rule 608(a), testimony is limited to general character for truthfulness. A Rule
608(a) character witness may not delve into specific instances of the child's truthfulness. Thus,
expert testimony that a child was truthful on a particular occasion is improper under Rule
608(a).453
When a child testifies, defense counsel typically cross-examines. Cross-examination that
insinuates the child is not telling the truth invites rehabilitation, but does it open the door to expert
testimony that the child testified truthfully, or told the truth on earlier occasions? Absent very
unusual circumstances, the answer is no.454
Some courts hold that testimony on credibility does not assist the jury.455 Other courts worry
449
268 Ga. App. 325, 601 S.E.2d 804 (2004).
601 S.E.2d at 807.
451
United States v. Barnard, 490 F.2d 907 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974);
People v. Eppens, 979 P.2d 14, 17 (Colo. 1999); People v. Gaffney, 769 P.2d 1081 (Colo. 1989);
People v. Snook, 745 P.2d 647 (Colo. 1987); Tevlin v. People, 715 P.2d 338 (Colo. 1986); People
v. Ross, 745 P.2d 277 (Colo. Ct. App. 1987); State v. Aguallo, 318 N.C. 590, 591, 350 S.E.2d 76,
81 (1986)(opinion that child was believable inadmissible under Rules 405 and 608(a)); State v.
Kim, 318 N.C. 614, 620, 350 S.E.2d 347, 351 (1986); State v. Holloway, 82 N.C. App. 586, 587,
347 S.E.2d 72, 73 (1986); State v. Kallin, 877 P.2d 138 (Utah 1994); State v. Rimmasch, 775
P.2d 388, 392 (Utah 1989)(―We join these courts and hold that Rule 608(a)(1) bars admission of
an expert's testimony as to the truthfulness of a witness on a particular occasion.‖); State v.
Wood, 194 W. Va. 525, 460 S.E.2d 771 (1995).
452
Credibility may only be supported after it is attacked. Fed. R. Evid. 608(a).
453
See Fed. R. Evid. 608(a).
454
Fuller v. State, 224 S.W.3d 823 (Tex. Ct. App. 2007)(―An expert may not offer a direct
opinion on the truthfulness of a child complainant's allegations. Moreover, an expert is not
permitted to give an opinion that the complainant or class of persons to which the complainant
belongs (such as child sexual assault victims) is truthful.… Moreover, the defendant does not
‗open the door‘ to otherwise inadmissible expert opinion testimony on the truthfulness of a
complainant's allegations by cross-examining the complainant herself or the complainant's
mother.‖).
455
State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 76 (1986)(―Opinion evidence on who is
telling the truth in cases such as this is nothing more than the expert's opinion on how the case
should be decided. We believe that such testimony is inadmissible, both because it usurps the
jury's traditional functions and roles and because, when given insight into the behavioral sciences,
the jury needs nothing further from the expert.‖); State v. Moran, 151 Ariz. 378, 382, 728 P.2d
248, 252 (1986); Jennette v. State, 197 Ga. App. 580, 398 S.E.2d 734, 737 (1990); State v.
450
101
such testimony impresses the jury too much and tempts jurors to forgo independent evaluation of
credibility.456 Some courts believe the testimony invites a battle of experts, and a trial within a
trial.457 A number of courts worry the testimony wastes time.458 Several decisions express concern
that the probative value of expert testimony on credibility is substantially outweighed by the
potential for unfair prejudice.459
The principle underlying rejection of expert testimony on credibility is the settled belief that
assessment of credibility is the exclusive province of the jury.460 The Ninth Circuit quipped, ―The
jury is the lie detector in the courtroom.‖461 In Commonwealth v. Seese,462 the Pennsylvania
Supreme Court wrote, ―The question of whether a particular witness is testifying in a truthful
manner is one that must be answered in reliance upon inferences drawn from the ordinary
experiences of life and common knowledge as to the natural tendencies of human nature, as well
as upon observations of the demeanor and character of the witness. The phenomenon of lying,
and situations in which prevarications might be expected to occur, have traditionally been
Myers, 382 N.W.2d 91, 97 (Iowa 1986); State v. Huard, 138 N.H. 256, 638 A.2d 787 (1994);
State v. Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73 (1986); State v. Pittman, 174 Wis.
2d 255, 496 N.W.2d 74, 79 (1993)(―Expert testimony does not assist the fact-finder if it conveys
to the jury the expert's own beliefs as to the veracity of another witness.‖); Montoya v. State, 822
P.2d 363 (Wyo. 1991).
456
United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986); United States v. Barnard, 490
F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974); Commonwealth v. Seese, 512
Pa. 439, 443-444, 517 A.2d 920, 922 (1986); Dunnington v. State, 740 S.W.2d 896, 898 (Tex. Ct.
App. 1987)(―use of expert testimony presents a risk of overbearing the jury in its deliberative
responsibility. The disparte expertise of the witness and the average juror tends to produce a
natural inclination to accept the expert testimony as gospel.‖ Court was not discussing expert
testimony on credibility).
457
United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959
(1974); People v. Snook, 745 P.2d 647, 649 n.4 (Colo. 1987).
458
People v. Snook, 745 P.2d 647, 649 n.4 (Colo. 1987).
459
State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248, 252 (1986); State v. Petrich, 101 Wash.
2d 566, 575, 683 P.2d 173, 180 (1984).
460
Davis v. Alaska, 415 U.S. 308, 317 (1974)(jury is ―sole judge of the credibility of a
witness‖); State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986); State v. Butler, 36 Conn.
App. 525, 651 A.2d 1306, 1309 (1995)(―The determination of the credibility of a witness is solely
the function of the jury.‖); State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990); Townsend v.
State, 103 Nev. 113, 734 P.2d 705 (1987); State v. Holloway, 82 N.C. App. 586, 587, 347 S.E.2d
72, 73-74 (1986); State v. Boston, 46 Ohio St. 3d 108, 545 N.E.2d 1220, 1240 (1989); Lawrence
v. State, 796 P.2d 1176 (Okla. Crim. App. 1990); McCafferty v. Solem, 449 N.W.2d 590 (S.D.
1989); Ochs v. Martinez, 789 S.W.2d 949, 956 (Tex. Ct. App. 1990)(defendant sought
psychological evaluation of victim so he could attack her credibility; court denied evaluation;
―Determining credibility is the sole province of the jury, and we will not allow expert witness
comment or testimony on the direct effect which an alleged emotional disturbance might have on
a complainant witness' ability to tell the truth at trial.‖); State v. Friedrich, 135 Wis. 2d 1, 16, 398
N.W.2d 763, 770 (1987)(―The credibility of witnesses and the weight given to their testimony are
matters left to the jury's judgment. The credibility of a witness is ordinarily something a lay juror
can knowledgeably determine without the help of expert opinion.‖).
461
United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959
(1974).
462
512 Pa. 439, 517 A.2d 920 (1986).
102
regarded as within the ordinary facility of jurors to assess.‖463 Indeed, the Pennsylvania Supreme
Court believes so strongly that credibility is for the jury alone that in Commonwealth v. Davis,464
the court held that a defense attorney provided ineffective assistance of counsel when the attorney
failed to object to expert testimony on credibility.
§6.22 COURT-ORDERED PSYCHOLOGICAL AND
MEDICAL EXAMINATION OF ALLEGED SEXUAL
ABUSE VICTIMS
This section discusses court-ordered psychological and medical examination of victims of
alleged rape and sexual abuse.
[A] Court-Ordered Psychological Examination
In bygone days, there was suspicion of women and children who alleged sexual offenses.465
Such allegations were often thought the result of mental instability, ―hysteria,‖ or fantasy. The
Illinoise Supreme court observed, ―[U]ntil recently, sex-offense victims were subjected to
increased scrutiny by the courts. The rationale for this higher scrutiny was grounded on the often
quoted maxim that rape ‗is an accusation easily made, hard to be proven and still harder to be
defended by one ever so innocent.‘‖466 No less an authority than Wigmore opined:
Modern psychiatrists have amply studied the behavior of errant young girls and
women coming before the courts in all sorts of cases. Their psychic complexes
are multifarious, distorted partly by inherent defects, partly by diseased
derangements or abnormal instincts, partly by bad social environment, partly by
temporary physiological or emotional conditions. One form taken by these
complexes is that of contriving false charges of sexual offenses by men. The
unchaste (let us call it) mentality finds incidental but direct expression in the
narration of imaginary sex incidents of which the narrator is the heroine or the
victim. On the surface the narration is straightforward and convincing. The real
victim, however, too often in such cases is the innocent man; for the respect and
sympathy naturally felt by the tribunal for a wronged female helps to give easy
credit to such a plausible tale.…
No judge should ever let a sex offense charge go to the jury unless the female
complainant's social history and mental makeup have been examined and
testified to by a qualified physician. It is time that the courts awakened to the
sinister possibilities of injustice that lurk in believing such a witness without
careful psychiatric scrutiny.467
In view of the suspicion surrounding women and children's credibility, courts took Wigmore's
advice and ordered selected sexual assault victims to undergo psychiatric assessment regarding
463
517 A.2d at 922.
518 Pa. 77, 541 A.2d 315 (1988). See also In re Ross, 158 Vt. 122, 605 A.2d 524 (1992).
465
John E.B. Myers, Child Protection in America: Past, Present and Future (2006)(Oxford
University Press.).
466
People v. Wheeler, 151 Ill. 2d 298, 602 N.E.2d 826, 831, 176 Ill. Dec. 880 (1992).
467
3A John H. Wigmore, Evidence in Trials at Common Law §924a, at 736-737, 740 (James
H. Chadbourn, revised ed. 1978)(Boston: Little, Brown & Co.).
464
103
mental stability and credibility.468 In addition, in some states, the uncorroborated testimony of a
victim was not sufficient to support a conviction.469
Societal attitudes and legal rules changed during the 1960s and 1970s, fueled by the women's
movement and the rape reform movement. Although watered down versions of the corroboration
requirement persist in a few states,470 the uncorroborated testimony of the victim is now sufficient
to support conviction.471 The Indiana Supreme Court wrote, ―[T]he uncorroborated testimony of a
468
Ballard v. Superior Court, 64 Cal. 2d 159, 410 P.2d 838, 49 Cal. Rptr. 302 (1966);
Annotation, Requiring Complaining Witness in Prosecution for Sex Crime to Submit to
Psychiatric Examination, 18 A.L.R.3d 1433 (1968).
469
Lawson v. State, 160 Md. App. 602, 865 A.2d 617 (2005)(history of the corroboration
requirement in sex offense prosecutions); People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131, 136,
552 N.Y.S.2d 883 (1990)(―Traditionally, the criminal justice system treated rape differently from
other crimes. For instance, many jurisdictions required corroboration of the rape victim's
testimony, even though no such corroboration was required for other violent crimes.‖).
470
Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001)(―Corroboration in a child sexual
abuse case is required only if the unsupported testimony of the victim is contradictory, or
incredible,or inherently improbable.‖); State v. Perdue, 317 S.W.3d 645 (Mo. Ct. App.
2010)(useful description of Missouri law); State v. Griffith, 312 S.W.3d 413 (Mo. Ct. App.
2010)(discussing current state of Missouri law); J.M.G. v. Juvenile Officer, 304 S.W.3d 193, 196
(Mo. Ct. App. 2009)(―We begin by noting that a victim‘s uncorroborated statements are, in and of
themselves, sufficient evidence to support a criminal conviction. . . . Corroboration is only
required when the victim‘s testimony is so contradictory and in conflict with physical facts,
surrounding circumstances and common experience, that its validity is thereby rendered
doubtful.‖); State v. Paxton, 140 S.W.3d 226, 229 (Mo. Ct. App. 2004); State v. Sprinkle, 122
S.W.3d 652, 666 (Mo. Ct. App. 2003)(―Generally, in sexual offense cases the victim's testimony
alone is sufficient to sustain a conviction, even if uncorroborated. Corroboration is required,
however, when the victim's testimony is so contradictory and in conflict with physical facts,
surrounding circumstances, and common experiences that its validity is doubtful. This is the
‗corroboration rule.‘ This rule only applies to inconsistencies in the victim's trial testimony, not to
inconsistencies with the victim's out-of-court statements or the testimony of other witnesses. ‗The
discrepancies must amount to gross inconsistencies and contradictions and must relate directly to
an essential element of the case.‘ Based on these rules, the corroboration rule does not apply
here.‖).
471
Bryant v. State, 2010 WL 129714 (Ark. 2010)(―This court has consistently held that the
testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony
satisfied the statutory elements of rape.‖); Butler v. State, 349 Ark. 252, 83 S.W.3d 152, 154
(2002)(―This court has also held that the uncorroborated testimony of a rape victim is substantial
evidence to support a rape conviction if the testimony satisfies the statutory elements.‖); Purdie v.
State, 2010 WL 3903547 (Ark. Ct. App. 2010)(―A rape victim‘s testimony may constitute
substantial evidence to sustain a conviction of rape, even when the vicitm is a child. The rape
victim‘s testimony need not be corroborated, nor is scientific evidence required, and the vicitm‘s
testimony describing penetration is enough for conviction.‖); In re S.A., 182 Cal. App. 4th 1128,
106 Cal. Rptr. 3d 382 (2010)(testimony of one witness is sufficient to support a verdict); In re
A.H., 259 Ga. App. 608, 578 S.E.2d 247, 250 (2003)(delinquency case: ―We have already
determined that the victim's testimony was reliable. Taking her testimony as true, as we must, it
alone was more than ample to support the finding of guilt.‖); People v. Williams, 223 Ill. App. 3d
692, 585 N.E.2d 1188, 1192 (1992)(―Our supreme court in a very recent decision rejected the
sex-offense standard of review, that a victim's testimony be clear and convincing or substantially
corroborated.‖); Turner v. State, 720 N.E.2d 440, 447 (Ind. Ct. App. 1999)(―A conviction for
104
child victim is sufficient to support a conviction for child molesting. And this is so despite the
child's limited vocabulary or unfamiliarity with anatomical terms.‖472 Although corroboration is
not required, evidence that corroborates the victim's testimony is admissible.473 The South Dakota
Supreme Court observed in State v. Bunger,474 ―Although corroborating evidence is never
necessary for conviction of a sexual offense, it tends to reinforce the proof supporting the charge.
As is often the case with sexual crimes against children, there may be negligible physical
evidence to corroborate the child's version of events. For this reason, the absence or presence of
circumstantial evidence may tend to discredit the child's version or substantiate it.‖475
As for psychological examination, in a few states, trial judges have no authority to order
child molesting may rest solely upon the uncorroborated testimony of the victim.‖); State v.
J.V.F., 47 So.3d 1, 13 (La. Ct. App. 2010)(―This court has held that, in sex offense cases, the
testimony of the minor victim is sufficient to support the conviction . . . .‖); State v. Simpson, 892
So. 2d 694 (La. Ct. App. 2005)(adult victim of forcible rape; ―The testimony of a sexual assault
victim alone is sufficient to convict a defendant.‖); State v. Hunter, 882 So. 2d 1204, 1206 (La.
Ct. App. 2004)(―The testimony of the victim alone is sufficient to convict a defendant. This is
equally applicable to the testimony of sexual assault victims. Indeed, such testimony alone is
sufficient even where the state does not introduce medical, scientific, or physical evidence to
prove the commission of the offense by the defendant.‖); State v. Ellis, 880 So. 2d 214 (La. Ct.
App. 2004); State v. White, 872 So. 2d 588, 590 (La. Ct. App. 2004); State v. James, 849 So. 2d
574 (La. Ct. App. 2003); State v. Simmons, 845 So. 2d 1249 (La. Ct. App. 2003)(―In the absence
of internal contradiction or irreconcilable conflict with physical evidence, one witness's
testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. In
the case of sexual offenses, the testimony on the victim alone can be sufficient to establish the
elements of a sexual offense, even where the State does not introduce medical, scientific or
physical evidence to prove the commission of the offense.‖); State v. Guerra, 834 So. 2d 1206,
1212 (La. Ct. App. 2002)(―The testimony of a sexual assault victim alone is sufficient to convict
a defendant. Such testimony alone is sufficient even where the state does not introduce medical,
scientific, or physical evidence to prove the commission of the offense by the defendant.‖);
Lawson v. State, 160 Md. App. 602, 865 A.2d 617 (2005)(―Today, every jurisdiction had
eliminated its general corroboration requirement for sex offense cases, and all but two have
rejected a corroboration requirement in statutory rape cases.‖); Wright v. State, 859 So. 2d 1028,
1030 (Miss. Ct. App. 2003)(sexual battery case; ―In regard to the physical evidence, ‗the
Mississippi Supreme Court has held that the ―totally uncorroborated testimony of a victim is
sufficient to support a guilty verdict where that testimony is not discredited or contradicted by
other evidence.‖‘‖); State v. Mort, 321 S.W.3d 471 (Mo. Ct. App. 2010)(―In sexual offense cases,
the victim‘s uncorroborated testimony alone is generally sufficient to sustain a conviction.‖);
J.M.G. v. Juvenile Officer, 304 S.W.3d 193, 196 (Mo. Ct. App. 2009)(―We begin by noting that a
victim‘s uncorroborated statements are, in and of themselves, sufficient evidence to support a
criminal conviction.‖); State v. Bauer, 308 Mont. 99, 39 P.3d 689, 693 (2002)(―This Court has
held repeatedly that a conviction for a sex offense may be based entirely on the uncorroborated
testimony of the victim.‖); Smith v. State, 2005 WL 277702 (Tex. Ct. App. 2005)(―The testimony
of a sexual assault victim alone is sufficient evidence of penetration to support a conviction, even
if the victim is a child.‖).
472
Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002).
473
State v. Bunger, 633 N.W.2d 606 (S.D. 2001).
474
633 N.W.2d 606 (S.D. 2001).
475
633 N.W.2d at 609.
105
sexual assault victims to submit to such examination.476 A California statute provides, ―The trial
court shall not order any prosecuting witness, complaining witness, or any other witness, or
victim in any sexual assault prosecution to submit to a psychiatric or psychological examination
for the purpose of assessing his or her credibility.‖477 An Illinois statute states, ―Except where
explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois, no court may
require or order a witness who is the victim of an alleged sex offense to submit to or undergo
either a psychiatric or psychological examination.‖478
In most jurisdictions, trial judges have authority to order victims to submit to psychological
assessment.479 Courts appreciate that court-ordered examination is an invasion of privacy.480
476
Barger v. State, 562 So. 2d 650, 655-656 (Ala. Crim. App. 1989)(trial court had no
authority to authorize psychological examination of child); Gale v. State, 792 P.2d 570, 575
(Wyo. 1990)(―There is no specific legal authority allowing a defendant to compel a witness in a
criminal trial to undergo an independent psychological examination at the defendant's request.‖).
477
Cal. Penal Code §1112.
See People v. Espinoza, 95 Cal. App. 4th 1287, 116 Cal. Rptr. 2d 700 (2002).
478
725 Ill. Com. Stat. 5/115-7.1.
See People v. Wheeler, 151 Ill. 2d 298, 602 N.E.2d 826, 831, 176 Ill. Dec. 880
(1992)(discussing legislative history of the Illinois statute; on facts of this case it violated
defendant‘s due process rights to disallow a defense-requested examination of the alleged victim).
479
People v. Wheeler, 151 Ill. 2d 298, 602 N.E.2d 826, 176 Ill. Dec. 880 (1992)(defendant's
request for psychological examination of victim should be allowed when prosecution offers
expert testimony that victim suffers from Rape Trauma Syndrome; examination was not to test
victim's credibility, but to determine whether she had the Syndrome); In re Mark M., 365 Md.
687, 782 A.2d 332 (2001) (juvenile court protective proceeding; court interprets Maryland statute
and concludes the parent could seek a court-ordered psychological examination of the child);
State v. Vaught, 12 Neb. App. 306, 672 N.W.2d 262, 266 (2003), aff'd, 268 Neb. 316, 682
N.W.2d 284 (2004)(―The determination of whether to grant a defendant's request for a psychiatric
evaluation of the victim is a matter of discretion for the trial court and will not be overturned
absent an abuse of discretion. The trial court may order a psychiatric examination of the victim
only when the record establishes compelling reasons. The purpose of such an examination in a
case involving a sex offense is to detect any mental or moral delusions or tendencies causing
distortion of the imagination which would affect the probable credibility of the complaining
witness. The trial court may order a psychiatric examination of the victim when the record
establishes compelling reasons, but may not do so merely to promote a fishingexpedition.‖); In re
Fatima M., 16 A.D.3d 263, 793 N.Y.S.2d 329, 336 (2005); State v. Eighth Judicial District Court,
97 P.3d 594 (Nev. 2004); Marvelle v. State, 114 Nev. 921, 966 P.2d 151 (1998), abrogated,
Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000)(conviction reversed in part because trial
judge refused to order psychological examination of 15-year-old victim of alleged rape); State v.
Ross, 2010 WL 761323 (Ohio Ct. App. 2010)(―A defendant does not have a right to compel a
rape victim to undergo a psychiatric or psychological examination. . . . A trial court may, in its
discretion, order such an examination, but it should do so only in exceptional circumstances and
only when necessary to further the ends of justice. . . . Ross did not establish that extraordinary
circumstances justified a forensic psychological examination of the accusers in this case.‖);
Hamill v. Powers, 164 P.3d 1083 (Okla. Crim. App. 2007)(mentally retarded adult victim;
prosecution's theory was that the victim's mental retardation made it impossible for her to consent
to sex; ―The mental state of the complainant thus bears directly on an essential element of the
offense with which Petitioner is charged.… We find that Petitioner's access to the findings of the
State's expert does not completely satisfy due process concerns in this particular case.‖ p. 1087.
―While the situations warranting such action are admittedly rare, most jurisdictions at least
106
Therefore, courts order examination only if the defendant establishes a compelling need for
psychological information on the victim.481 Unadorned challenges to a victim's credibility do not
amount to a compelling reason for psychological examination. The fact that the victim is young,
without more, is no reason for court-ordered psychological examination. Although a judge has
authority to order a victim to undergo psychological assessment, the judge cannot force an
recognize the trial court's authority to order a psychological examination of the complaining
witness, even in the absence of express statutory provision. We are particularly persuaded by
several decisions which hold that a defendant is entitled to conduct such an evaluation if he
demonstrates sufficient compelling circumstances. Such circumstances include whether the
complainant's mental state bears directly on an essential element of the charge, and whether the
State intends to offer the testimony of its own expert to support that element of proof at trial.‖ p.
1087. ―We therefore join those jurisdictions which have held that the trial court has inherent
authority to order a psychological or psychiatric evaluation of the complainant in a criminal
prosecution, when the defendant has demonstrated sufficient compelling circumstances.… In
cases such as this one, where the complainant's mental state bears directly on an essential element
of the offense, and the State intends to offer its own expert testimony on the issue, due process
requires that the accused be afforded the opportunity for pretrial investigation of substantially
similar quality. Of course, the trial court's authority includes the discretion to determine the time,
place, and manner of such examinations, including who may be present and what subjects may be
covered.… While the court cannot compel the complainant to participate in such an evaluation, if
the complainant refuses to do so, the court may find it appropriate to bar the State from
introducing its own psychological evidence at trial.‖ pp. 1088-1089. In footnote 17 the Court
wrote, ―We express no opinion on whether such psychological evaluations would ever be material
in prosecutions where ‗consent‘ to a sexual act is impossible as a matter of law, due to the
complainant's age.‖).
480
Collins v. United States, 491 A.2d 480, 484 (D.C. 1985), cert. denied, 475 U.S. 1124
(1986); In re Fatima M., 16 A.D.3d 263, 793 N.Y.S.2d 329, 336 (2005).
481
United States v. Sumner, 119 F.3d 658 (8th Cir. 1997)(defendant failed to make sufficient
showing for examination; the government's experts were not allowed to testify whether abuse
occurred, or whether child was truthful; therefore, defendant did not need independent
examination of child); State v. Rucker, 267 Kan. 816, 987 P.2d 1080 (1999)(defendant did not
make sufficient showing); State v. Weiler, 801 S.W.2d 417, 419-420 (Mo. Ct. App. 1990), cert.
denied, 502 U.S. 905 (1991)(child precocious sexual knowledge not sufficient justification for
examination); State v. Butler, 27 N.J. 560, 143 A.2d 530, 560 (1958)(―Orders to permit it to be
done should be executed only upon a substantial showing of need and justification.‖); In re
Fatima M., 16 A.D.3d 263, 793 N.Y.S.2d 329, 336 (2005)(family court child protection
proceeding; ―While [the state] and the law guardian were allowed to present their own experts,
who opined that the twin girls had been subject to sexual abuse by their father, respondent father
himself was not allowed to have an expert. By not allowing respondent father to present an
expert, he was effectively precluded from fully exploring the possibility that Aquella's
accusations were a manifestation of her psychiatric problems. As such, his ability to present a
defense was severely curtailed. While we are not insensitive to the effect on the children here,
there was no evidence that this additional interview would traumatize either child. By the
conclusion of the fact-finding hearing, the twins were 16 years old and had been away from their
parents for more than 18 months. Thus, it was an abuse of the court's discretion to have denied
respondent's application to have his own expert examine the children, where there was a
demonstrated need, and no evidence that the children would suffer any appreciable additional
harm.‖); Hamill v. Powers, 164 P.3d 1083 (Okla. Crim. App. 2007).
107
unwilling victim to attend an assessment.482
The strongest argument in favor of court-ordered psychological assessment arises when the
prosecution plans to offer psychological testimony that the victim was sexually abused, has
symptoms consistent with sexual abuse, or has posttraumatic stress disorder. In such
circumstances, the defense may need an independent examination of the victim to evaluate the
psychological evidence.483 The Wisconsin Court of Appeals' decision in State v. Maday484 is a
useful authority on the issue. In Maday, the prosecution intended to offer expert testimony that
the behavior of two teenage boys was consistent with sexual abuse. Prior to trial, defendant filed a
motion for court-ordered psychological examination of the boys. Defendant did not seek the
examination to challenge the boys' credibility or testimonial competence. Rather, defendant
sought the examinations to prepare to meet the prosecution's expert testimony. The Court of
Appeals wrote:
In this appeal we consider whether a defendant in a sexual assault prosecution is
entitled to a pretrial psychological examination of the victim when the state gives
notice that it intends to introduce evidence generated by a psychological
examination of the victim by the state's experts. Because fundamental fairness
dictates that a defendant be able to obtain access to all relevant evidence
necessary to be heard in his or her own defense, we conclude that a trial court has
the discretion to grant a motion for a psychological examination of a victim.…
When the state manifests an intent during its case-in-chief to present
testimony of one or more experts, who have personally examined the victim of an
alleged sexual assault, and will testify that the victim's behavior is consistent with
the behavior of other victims of sexual assault, a defendant may request a
psychological examination of the victim. A defendant making such a request
must present the court with evidence that he or she has a compelling need or
reason for the psychological examinations. In considering the defendant's
request, the trial court should consider: (1) the nature of the examination
requested and the intrusiveness inherent in that examination; (2) the victim's age;
(3) the resulting physical and/or emotional effects of the examination on the
victim; (4) the probative value of the examination to the issue before the court;
482
Hamill v. Powers, 164 P.3d 1083, 1088-1089 (Okla. Crim. App. 2007)(mentally retarded
adult victim; prosecution's theory was that the victim's mental retardation made it impossible for
her to consent to sex; ―While the court cannot compel the complainant to participate in such an
evaluation, if the complainant refuses to do so, the court may find it appropriate to bar the State
from introducing its own psychological evidence at trial.‖); State v. Maday, 179 Wis. 2d 346, 507
N.W.2d 365 (Ct. App. 1993).
483
United States v. Walker, 354 F. Supp. 2d 1084 (D.N.D. 2005)(defendant was charged with
molesting a 7-year-old; as part of the investigation the child was interviewed at a child advocacy
center and the forensic interview was videotaped; defense counsel was provided a copy of tape;
the Assistant U.S. Attorney informed the defense that the government intended to call the
interviewer at trial; defense counsel filed a motion seeking an independent psychological
examination of the child; denying the motion, the court noted that the defense would have a full
opportunity to cross-examine the interviewer at trial; defendant did not convince the court of the
need for an independent examination of the child); See People v. Wheeler, 151 Ill. 2d 298, 602
N.E.2d 826 (1992); People v. Le, 346 Ill. App. 3d 41, 803 N.E.2d 552 (2004)(adult victim;
posttraumatic stress disorder); State v. Rizzo, 250 Wis. 2d 407, 640 N.W.2d 93 (2002); State v.
Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993).
484
179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993).
108
(5) the remoteness in time of the examination to the alleged criminal act; and (6)
the evidence already available for the defendant's use.
To these six considerations we add a seventh. The trial court should consider,
based on the testimony of the defendant's named experts, whether or not a
personal interview with the victim is essential before the expert can form an
opinion, to a reasonable degree of psychological or psychiatric certainty, that the
victim's behaviors are consistent with the behaviors of other victims of sexual
abuse.
If the trial court determines under this test that the defendant is entitled to a
pretrial psychological examination of the victim, it should issue an order that the
victim shall submit to a clinical interview to be conducted by the defendant's
psychologist or psychiatrist. The trial court does have the discretion to place
conditions on the order to protect the victim and to prevent the examination from
being used to harass the victim. For example, the trial court may determine
whether the examination can be electronically recorded; the type of interview
protocol the examiner may employ; the length and place of the interview; the
number of interviews; the number of experts that may conduct the interviews;
and, whether the victim may be accompanied at the interview.
Of course, the person accompanying the victim is there to provide emotional
support and cannot attempt to interfere in the interview. It would be inappropriate
if the person accompanying the victim had a relationship with the prosecution of
the defendant, including an attorney, social worker, victim's rights representative,
investigator, retained expert witness, etc. The person accompanying the victim
should be a parent, spouse, sibling or some other lay person who is a part of the
victim's support network.
Under the rules of discovery, any report generated by the defense expert's
examination of the victim is discoverable by the prosecution.
We point out that nothing in our opinion requires a victim to consent to an
examination by the defendant's psychologist or psychiatrist. In order to protect
the privacy of the victims in cases of alleged sexual assault, the ultimate decision
of whether to undergo an examination is to be left in the hands of the victim. The
victim is free to refuse for whatever reason. However, a victim's refusal to submit
to a pretrial psychological examination must be balanced against the defendant's
constitutional rights to a fair trial. Thus, where a victim refuses to submit to an
examination and where the defendant has shown a compelling need for the
psychological examination, the state may not introduce evidence of the behavior
of the victim through its examining experts. Nevertheless, the state will not be
prohibited from using a nonexamining expert to introduce evidence that the
behavior of the victim is consistent with the behaviors of victims of the same
type of crime.485
485
507 N.W.2d at 367, 372.
109
[B] Court-Ordered Medical Examinations
Defendants occasionally seek court-ordered medical examinations of children.486 In State v.
Ramos,487 the Rhode Island Supreme Court ruled that trial judges have authority in criminal cases
to order a physical examination, but only on a showing of compelling justification. In State v.
Barone,488 the Tennessee Supreme Court thoroughly analyzed the subject. Like the Rhode Island
court, the Tennessee court acknowledged the need for court-ordered examination, but only in
compelling circumstances. By contrast, the Illinois Supreme Court ruled in People v. Lopez,489―A
trial court may not order the physical examination of a complaining witness in a sex offense
case.‖490
§ 6.23 PORNOGRAPHY
Evidence issues arising in child pornography cases are discussed in this section. Proof of the
victim's age is addressed in § 6.24.
In some prosecutions, it is necessary to determine whether an image depicts an actual child or
a ―virtual‖ child.491 Courts generally hold that expert testimony, although admissible,492 is not
required to establish whether a picture is of a real or a virtual child.493 Some decisions hold that
486
State v. Nguyen, 52 Conn. App. 85, 726 A.2d 119 (1999)(trial court did not err in denying
defendant's request for another medical examination; defendant was able to cross-examine the
doctors who examined the child); State v. Farr, 558 So. 2d 437 (Fla. Ct. App. 1990)(trial court
erred in granting defense request for additional medical examination of child; defense did not
present compelling evidence of need for examination); State v. McIntosh, 274 Kan. 939, 58 P.3d
716 (2002)(defendant failed to make compelling case for examination); State v. Little, 260 Mont.
460, 861 P.2d 154, 159 (1993)(―a defendant cannot compel a child victim of a sexual offense to
undergo an independent medical examination‖); State v. Purro, 593 A.2d 450 (R.I. 1991)(trial
court did not err in refusing defendant's request for anal examination of victim; sexual abuse
stopped years before requested examination); State ex rel. J.W. v. Knight, 223 W. Va. 785, 679
S.E.2d 617 (2009)(defendant was sibling of victim; defendant sought medical examination of
victim hoping to find lack of physical injury; trial court approved the exam and the Supreme
Court affirms with a thoughtful analysis).
487
553 A.2d 1059 (R.I. 1989).
488
852 S.W.2d 216 (Tenn. 1993).
489
207 Ill. 2d 449, 800 N.E.2d 1211 (2003).
490
800 N.E.2d at 1216-1217. The Illinois Supreme Court wrote, ―We further hold that, when
a trial court rules on the admission of evidence in a sex offense case where a defendant has
requested the physical examination of a complaining witness and the witness refuses to submit to
the examination, the court must balance the due process rights of the defendant against the
privacy rights of the alleged victim, by deciding what medical evidence, if any, the State is
allowed to introduce.‖ 800 N.E.2d at 1212.
491
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Padgett v. United States, 302 F.
Supp. 2d 593 (D. S.C. 2004)(useful analysis of Ashcroft); Porath v. State, 148 S.W.3d 402 (Tex.
Ct. App. 2004).
492
United States v. Hilton, 363 F.3d 58 (1st Cir. 2004)(expert medical testimony that used the
Tanner Scale).
493
United States v. Slanina, 359 F.3d 356 (5th Cir. 2004); People v. Phillips, 346 Ill. App. 3d
487, 805 N.E.2d 667 (2004)(but see dissent); State v. Alinas, 171 P.3d 1046, 1051 (Utah
2007)(―Likewise, every federal circuit court to address the issue has held that a state may prove
that images of children are real, as opposed to virtual, merely by allowing the fact finder to
110
images themselves can prove that the child depicted is an actual child.494 In United States v.
Hilton,495 however, the First Circuit wrote, ―While the images form essential evidence without
which a conviction could not be sustained, we hold that the government must introduce relevant
evidence in addition to the images to prove the children are real.‖496
§ 6.24 PROOF OF AGE AND MARITAL STATUS
It is often necessary to prove the age of the victim or the accused. Under some statutes, it is
necessary to prove that the victim was unmarried. This section addresses proof of age and marital
status.
[A] Physical Appearance and Courtroom Testimony
Age may be established from the physical appearance of a person in court, whether or not on
the witness stand.497 Parents may testify regarding their child's age, and such testimony is not
example the images themselves. We are of the same view. Whether an image depicts a virtual
child or a real child is a question of fact for the jury. Also, whether the children depicted are
minors is a question of fact for the jury.‖).
494
United States v. Hilton, 363 F.3d 58 (1st Cir. 2004); United States v. Slanina, 359 F.3d
356 (5th Cir. 2004); State v. Sorabella, 891 A.2d 897, 918 (Conn. 2006)(―We agree that, at least
in some cases, it may be difficult for a lay observer to distinguish between real and virtual
images. As the defendant acknowledges, however, the vast majority of courts have rejected the
claim that, in light of technological advances, the prosecution, in every case must present expert
testimony to establish that a particular image depicts a real child.… In the absence of any
persuasive support for the view advocated by the defendant, we see no compelling reason to
adopt a special rule of evidence for cases such as the present case, which involves images
transmitted over the internet. Although we cannot conclude, in light of evolving technology, that
such a rule never will be necessary, we believe that ‗[j]uries are still capable of distinguishing
between real and virtual images; and admissibility remains within the province of the sound
discretion of the trial judge.‘‖); People v. Normand, 215 Ill. 539, 549, 831 N.E.2d 587
(2005)(―Thus, the State was required to prove beyond a reasonable doubt that the sexually
explicit images possessed by defendant depicted actual children. The only evidence that actual
children were depicted by the photographs admitted at defendant's trial were the photographs
themselves.… [F]ederal courts of appeal have concluded that the government need not introduce
evidence other than the pornographic images themselves.… Unlike photographs used as
demonstrative evidence, the photographs taken from the computer images here were themselves
the evidence of defendant's offense.… Defendant's argument assumes that computer imaging
technology has advanced to the stage where pornographic images of children may be produced
without using real children. This is the so-called virtual child.… [W]e conclude that a trier of fact
is capable of determining whether real children were used in pornographic images simply by
viewing the images themselves. In this particular case, after viewing the images ourselves, we
find that any trier of fact could conclude beyond a reasonable doubt that the photographs depicted
actual children, and that defendant knowingly possessed the images.‖).
495
363 F.3d 58 (5th Cir. 2004).
496
363 F.3d at 64 (italics in original).
497
State v. Gibson, 38 So.3d 373, 381 (La. Ct. App. 2010)(―Furthermore, we note that jury
observation can be used to infer the age of a defendant when no direct evidence of defendant‘s
age is presented.‖); State v. Weisbrode, 653 A.2d 411, 415 (Me. 1995); In re A.N., 267 N.J.
Super. 158, 630 A.2d 1183 (Ct. Ch. Div. 1993)(review of cases discussing proof of age based on
111
hearsay because parents have personal knowledge of their child's birthday. Adoptive parents may
lack personal knowledge of their child's birth, but adoptive parents should be permitted to state
their child's age.498 The Maine Supreme Court held that a jury may rely on ―its own observations
in comparing a victim's and the defendant's physical characteristics and demeanor to determine
the age differential of the defendant and the victim.‖499
When the defendant's age is at issue, defendant's in-court and out-of-court statements on the
subject constitute admissions.500 Statements by one spouse may establish the age of the other.501
A child may testify to their parent's age.502 The Lousiana Court of Appeal wrote in State v.
Gibson503 ―[J]ury observation can be used to infer the age of a defendant when no direct evidence
of defendant‘s age is presented.‖504 Circumstantial evidence can establish age.505 Thus, in State v.
physical appearance); State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993)(―However, ‗a
jury may base its determination of a defendant's age on its own observation of him even when the
defendant does not testify. . . . The defendant was in fact forty-one years old at the time of the
trial. Testimony was given that showed that the defendant married the victim's mother in 1987.
The defendant was present in the courtroom during the trial so that the jury could see him. There
was evidence that the defendant drank alcoholic beverages and had done so for a number of
years. The jury could reasonably infer that the defendant was at least sixteen, and that he was five
years older than the victim, particularly in light of the fact that he was twenty-four years older
than the age element of the crime.‖); State v. Gray, 292 N.C. 270, 286, 233 S.E.2d 905, 915-916
(1977).
498
State v. Mitchell, 568 N.W.2d 493 (Iowa 1997)(adoptive mother's testimony about child's
birthday was admissible under Rule 803(19)).
499
State v. Weisbrode, 653 A.2d 411, 415 (Me. 1995).
500
Fed. R. Evid. 801(d)(2)(A).
501
People v. Buhrle, 744 P.2d 747 (Colo. 1987)(defendant's age could be established—at
least at a preliminary hearing—by out-of-court statements of defendant's spouse relating
defendant's age to third parties); State v. Fontenot, 616 So. 2d 1373 (La. Ct. App. 1993).
502
State v. Woody, 477 S.E.2d 462 (N.C. Ct. App. 1996)(defendant's child, who was also the
victim, had personal knowledge of defendant's age).
503
38 So.3d 373 (La. Ct. App. 2010).
504
38 So.3d at 381.
505
State v. Weisbrode, 653 A.2d 411, 415 (Me. 1995)(―The State presented no direct
evidence of Weisbrode's age. Circumstantial evidence, however, is no less conclusive than direct
evidence in supporting a conviction. A jury is entitled to rely on circumstantial evidence and its
own observations in comparing a victim's and the defendant's physical characteristics and
demeanor to determine the age differential of the defendant and the victim.‖); State v. Sivo, 925
A.2d 901 (R.I. 2007)(defendant was charged with physically injuring 2-and-one-half-year-old;
―In this case, although it was error for the trial justice to instruct the jury that the child's age was
proven beyond a reasonable doubt, that error was harmless. Throughout defendant's closing
argument he repeatedly referred to the victim as a child. Furthermore, at trial, the victim's parents
both testified to their son's date of birth, yet defendant did not object to this testimony and did not
cross-examine or offer disputing evidence on that issue. The only time defendant objected to the
classification of John Jr. as a child was at the close of trial when the trial justice rendered his jury
instructions. Finally, throughout trial it was uncontroverted that the victim was treated by a
pediatrician at a children's hospital. This evidence makes it inconceivable that a jury could have
found this element unproven even absent the trial justice's erroneous instruction.‖); Rowe v.
State, 974 P.2d 937 (Wyo. 1999)(there was ample evidence from testimony at trial about
defendant's adult activities, plus defendant's physical appearance, to support the conclusion that
defendant was an adult).
112
Bynum506 defendant's age was established in part with evidence that he was married and had
consumed alcoholic beverages for some years.507 Age may be inferred from proof of when abuse
occurred.508 Lay opinion is admissible to establish age.509
[B] Hearsay
Age can be established with a birth certificate.510 Rule 803(9) of the Federal Rules of
Evidence creates a hearsay exception for birth certificates. Age can be established by resort to
records of religious organizations511 and family records.512
A witness may testify to their age.513 When a witness testifies to her own age or date of birth,
a hearsay objection is technically possible.514 After all, she knows her birthday only because
someone told her. The hearsay objection is seldom raised, however, and when it is, courts reject
it.515 In Antelope v. United States,516 the Tenth Circuit stated, ―Testimony by one as to his age and
date of his birth is in a sense hearsay, but is an exception to the rule that hearsay testimony may
not be received in evidence. Courts generally recognize that one is competent to testify as to his
age and the date of his birth although of necessity such facts are based upon hearsay and family
history.‖517 The Appellate Division of the New York Supreme Court wote in People v. Scott518
―The age of the victim was established by her unambiguous testimony, and it is well settled that a
person is competent to testify as to his or her own age.‖519 Louisiana has a hearsay exception for a
witness's testimony as to the witness's own age.520
506
111 N.C. App. 845, 433 S.E.2d 778 (1993).
433 S.E.2d at 781-782.
508
Barger v. Indiana, 991 F.2d 394 (7th Cir. 1993)(proof of age from evidence of when
molestation probably occurred).
509
United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992)(defendant's conviction for statutory
rape reversed because trial judge excluded defense witnesses who would have offered lay
opinions that victim was at least 16 years old).
510
United States v. Austrew, 202 F. Supp. 816, 822 (D. Md. 1962), aff'd per curiam, 317 F.2d
926 (4th Cir. 1963)(child's age established with birth certificate).
511
Fed. R. Evid. 803(11), (12).
512
Fed. R. Evid. 803(13).
513
Minton v. State, 802 N.E.2d 929, 931 n.4 (Ind. Ct. App. 2004).
514
Testimony regarding one's own age should be admissible under a residual or child hearsay
exception. Rule 804(b)(4) allows statements regarding a person's own birth provided the person is
unavailable at trial.
515
People v. Williams, 477 N.W.2d 877 (Mich. Ct. App. 1991)(defendant objected on
hearsay grounds to victim's testimony regarding her age; rejecting defendant's argument the court
wrote, ―It has long been established in this state that a person is competent to testify regarding his
own age‖).
516
185 F.2d 174 (10th Cir. 1950).
517
185 F.2d at 175.
See United States v. Estrella, 21 M.J. 782 (A.C.M.R. 1986); Slater v. State, 575 So. 2d 1208,
1209 (Ala. Crim. App. 1990)(victim testified to his own age); People v. Bessette, 169 A.D.2d
876, 564 N.Y.S.2d 605, 606 (1991)(―A person is competent to testify as to his own age.‖).
518
61 A.D.3d 1348, 877 N.Y.S.2d 536 (2009).
519
877 N.Y.S.2d at 537.
520
La. R. Evid. 803(24).
507
113
[C] Proof of Age in Pornography Cases
In child pornography litigation, the prosecution must prove that the ―child‖ depicted in a
video or photograph was under eighteen.521 If the child testifies, age can be established through
the child. When pornographic images of children are traded over the Internet, the victim may be
anywhere in the world, making it difficult or impossible to put the child on the stand.522
If the child in a picture or video is obviously young, age can be established without expert
testimony.523 The picture speaks for itself. The Pennsylvania Superior Court wrote, ―Proof of age,
like proof of any other material fact, can be accomplished by the use of either direct or
circumstantial evidence, or both. The proof necessary to satisfy the element of age in a
dissemination or possession of child pornography case is not limited to expert opinion testimony.
[A Pennsylvania statute] merely allows that if competent expert testimony is presented it shall be
sufficient to establish the age element of the crime. This subsection does not mandate such proof
in order to sustain a conviction. Rather, the outward physical appearance of an alleged minor may
be considered by the trier of fact in judging the alleged minor's age.‖524
When a child's age is uncertain, expert testimony from a pediatrician can help establish age.
Pediatricians examine thousands of children of all ages. Scientific literature exists on growth and
development of normal children.525 Combining the relevant literature with clinical experience, ―a
trained expert can offer probabilities regarding the age of a child.‖526
The body goes through dramatic changes during puberty, which for American girls usually
United States v. Smith, 459 F.3d 1276, 1287 (11th Cir. 2006)(―Because Smith did not
testify at trial, any evidence regarding his knowledge of the victim's age must necessarily be
circumstantial. The evidence presented by the Government included the following: (1) the
testimony of Officer Mayo—one of the officers who executed the search warrant and who had no
specific training regarding sex crimes or child exploitation—who described the females in the
photographs as ‗very, very young girls;‘ (2) the testimony of Detective Dickie, a sex crimes—sex
abuse investigator with sixteen years of related experience, who testified that some of the
photographs were of females under eighteen and whose follow-up investigation of such
photographs led her to the victim; and (3) the actual photographs of the victim. Given this
evidence, and the reasonable inferences that could be drawn therefrom, a reasonable juror could
find beyond a reasonable doubt that the victim was so obviously a minor that the defendant must
have known as much.‖); United States v. Pollard, 128 F. Supp. 2d 1104 (E.D. Tenn. 2004); State
v. Alinas, 171 P.3d 1046, 1051 (Utah 2007)(―For example, courts have generally held that the
jury themselves, through visual examination, are capable of making the determination whether
the children depicted are under eighteen years of age.‖).
522
Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1213 (Pa. Super. Ct. 2003)(―Given
the anonymity of the internet, the identity of children depicted and their whereabouts are
frequently unknown. Thus, conventional means of proving age such as birth certificates or
testimony of a relative are usually unavailable. To require law enforcement officials to track
down and identify the children depicted in order to successfully prosecute a child pornography
case would rip the teeth out of the child pornography statute and destroy its efficacy as a
preventive measure in the sexual exploitation of children.‖).
523
Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212 (Pa. Super. Ct. 2003).
524
Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1212 (Pa. Super. Ct. 2003).
525
Carole Jenny, Paul C. Graf, & David E. Watson, Child Pornography—Evaluation and
Investigation.
526
Investigation.
521
114
begins between the ages of eight and thirteen. For boys, puberty typically begins between nine
and fourteen. Jenny writes, ―In girls, the first sign of puberty is usually the development of small
breast buds. This is followed by development of pubic hair, and menstruation occurs well after
breasts and pubic hair develops. Menstruation is a sign of maturity of the uterus, although most
girls will not ovulate during their early cycles and are initially not fertile. In boys, the initial
growth in testicle size is followed by a gradual lengthening of the penis and the scrotum. After
this, pubic hair develops. As the penis grows to an adult size, the larynx (voice box) enlarges and
the voice deepens and changes.‖527 Jenny notes that many things can affect the onset and length
of puberty, including genetics, nutrition, exercise, obesity, and medical conditions. Jenny writes,
―Even when puberty is delayed, the chances that a person will not be sexually maturing by age 18
are overwhelmingly small.‖528
One tool used by pediatricians to evaluate age is Tanner staging.529 Tanner staging describes
changes in the genitals of boys and the breasts and pubic hair of girls occurring during puberty.
Information on Tanner staging is available on the Internet and from the American Academy of
Pediatrics.530
In boys, Tanner staging evaluates maturation of the genitals and pubic hair. Jenny describes
the stages of development of the male genitals: ―Genital Stage 1: The testes, scrotum, and penis
are about the same size and proportion as in early childhood. Genital Stage 2: The scrotum and
testes enlarge and the scrotal sac reddens and changes in texture. There is little or no enlargement
of the penis. Genital Stage 3: There is further growth of the testes and scrotum and the penis
begins to enlarge, mainly in length. Genital Stage 4: The testes and scrotum continue to enlarge
and the scrotal skin continues to darken. The penis continues to grow in breadth and length with
development of the glans (the head of the penis). Genital Stage 5: The genitalia are of adult size
and shape. No further enlargement takes place.‖531 As for the development of male pubic hair,
Jenny describes the Tanner stages as follows: ―Pubic Hair Stage 1: The vellus (fine hair) of the
pubis resembles the hair found over the abdomen of a young child. Pubic Hair Stage 2: Sparse
growth of long, slightly pigmented, downy hair, straight or only slightly curled, appears chiefly at
the base of the penis. Pubic Hair Stage 3: The hair is considerably darker, coarser, and more
curled. It spreads sparsely over the junction of the pubic bones above the penis. Pubic Hair Stage
4: The hair is now adult-like but the area covered is still considerably smaller than in most adults.
There is no spread of hair to the inside surfaces of the thighs. Pubic Hair Stage 5: The hair is adult
in quantity and type, distributed in the ‗male‘ pattern of an inverse triangle, and may spread to the
inside surface of the thighs.‖532
In girls, Tanner staging focuses on development of breasts and pubic hair. Jenny describes the
stages of breast development: ―Breast Stage 1: This is the infantile stage which persists from birth
until the onset of puberty. There is no actual breast tissue noted and the areola (the darker colored
527
Investigation.
528
Investigation.
529
United States v. Pollard, 128 F. Supp. 2d 1104 (E.D. Tenn. 2001)(Tanner scale was one
factor in pediatrician's opinion of age).
530
M.E. Herman-Giddens & C.J. Bourdony, Assessment of Sexual Maturity Stages in Girls
(1995)(Elk Grove Village, Ill.: American Academy of Pediatrics).
531
Investigation.
532
Investigation.
115
circle of tissue around the nipple) is flat. Breast Stage 2: A small bud of tissue is found under the
areola. The small bud of tissue is not larger than the areola. Breast Stage 3: The breast and areola
continue to enlarge. There is no separation in the contour of the breast and the areola. They have a
continuous, rounded contour. Breast Stage 4: The areola and nipple increase in size. They form a
secondary mound of tissue projecting above the contour of the breast. Breast Stage 5: The breast
shows adult configuration with prominent nipple and smooth, rounded contour. The secondary
mound of the nipple and areola seen in Breast Stage 4 is gone.‖533 Jenny describes the stages of
female pubic hair development: ―Pubic Hair Stage 1: There is no pubic hair visible. Pubic Hair
Stage 2: A small amount of long, downy hair is present around the edges of the labia majora (the
larger of the two sets of lips covering the vaginal opening). The hair is only slightly curly. Pubic
Hair Stage 3: The hair is considerably darker, coarser, and more curled. It spreads further out over
the surface of the labia. Pubic Hair Stage 4: The hair is now adult-like in color, curl and
coarseness. The area of the labia covered is larger, but the entire surface of the labia is not
covered with hair. The hair does not extend out to the inner surface of the thighs. Pubic Hair
Stage 5: The hair is adult in quantity and type. It covers the labia and often extends out to the
inner surface of the thighs.‖534 Jenny adds, ―Even if the pubic hair is shaved, mature female
genitalia do not look like the genitals of a young child.‖535
Charts are available in the medical literature describing the percentage of children of various
ethnicities and ages that have reached particular stages of development.536
After reviewing the relevant literature, Jenny concluded:
Children who appear to be children are statistically likely to be children! In the
USA, girls and boys who have Tanner stage I breasts, pubic hair and genitals are
over 99.9% likely to be under the age of consent.
In the US, even girls with Tanner II stage breasts and genitals are 99.9%
likely to be under age 18. The data on Tanner stage II development is less
reliable in boys. The conclusion can be made that any pornographic image of a
female child with Tanner stage I or II development and any image of a male child
with Tanner stage I development should be prosecutable.… Given that most girls
are at least Tanner stage III or IV at the onset of menstruation, images of
prepubertal girls and boys are likely to be images of young children.537
[D] Proof of Marital Status
Under some statutes, the prosecution must prove that the victim was unmarried at the time of
the offense.538 Any evidence shedding light on marital status may be offered.539 In State v.
533
Investigation.
534
Investigation.
535
Investigation.
536
Investigation.
537
Investigation.
538
State v. Pitre, 893 So. 2d 1009 (La. Ct. App. 2005).
116
Pitre,540 the twenty-eight-year-old defendant had sex on three occasions with the thirteen-year-old
victim. The prosecution failed to offer evidence specifically targeted at the victim's marital status.
The Louisiana Court of Appeals ruled that the victim's unmarried status could be inferred from
the facts that she was only thirteen, she lived with her father, and she ended her relationship with
defendant when she learned defendant was dating a woman.
§6.25 EXPERT TESTIMONY REGARDING THE
ACCUSED
Thus far, Chapter 6 has focused on victims. In §§ 6.26 to 6.30, attention shifts to the accused.
Section 6.26 discusses various aspects of sex offending and pedophilia. Section 6.27 addresses
psychological assessment of sex offenders. Section 6.28 analyzes expert testimony on whether the
accused fits the profile of a ―typical‖ pedophile or sex offender. Section 6.29 discusses treatment
for sex offenders. Finally, Section 6.30 addresses civil commitment of dangerous sexual
offenders.
§ 6.26 PEDOPHILIA DEFINED: THE MODUS
OPERANDI OF SEX OFFENDERS AGAINST
CHILDREN
Pedophilia is sexual deviance in which an adult is sexually interested in children.541
Pedophilia is one of eight types of sexual deviance—paraphilia—listed in the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.542 The eight
paraphilia are: Exhibitionism (exposing one's genitals to strangers); Fetishism (sexual arousal to
nonliving objects such as women's underwear or shoes); Pedophilia (sexual conduct with
children); Sexual masochism (sexual arousal to being humiliated or hurt); Sexual sadism (sexual
arousal derived from inflicting suffering or pain); Transvestic fetishism (cross-dressing);
Voyeurism (surreptitiously watching women undress or watching women engaged in sexual
activity). Many men and women who sexually abuse children do not meet the diagnostic criteria
for pedophilia.
539
State v. Pitre, 893 So. 2d 1009 (La. Ct. App. 2005); Strahan v. State, 306 S.W.3d 342
(Tex. Ct. App. 2010)(―However, direct evidence that the victim was not the spouse of the
defendant is not required; it may be proved by circumstantial evidence.… In the instant case, we
have carefully reviewed the record, and although we find no direct evidence establishing that
A.H. was not Strahan's spouse, there is ample circumstantial evidence establishing this fact. The
evidence established that A.H. was approximately ten years old when the sexual assaults began
taking place. A.H. initially testified that Strahan was her father but later testified that it was
confusing and that she did not know who her father was.‖ There was additional circumstantial
evidence).
540
State v. Pitre, 893 So. 2d 1009 (La. Ct. App. 2005).
541
527 (4th ed. Text Revision 2000)(Washington, D.C.: American Psychiatric Association).
542
527 (4th ed. Text Revision 2000)(Washington, D.C.: American Psychiatric Association).
117
[A] Multiple Paraphilia Are Common
Men who are sexually interested in children often have other paraphilias as well.543 Salter
writes, ―There is considerable research evidence at present that multiple paraphilias should be
considered in every case of sexual offense.‖544
[B] Etiology of Sex Offending Is Unknown
Mental health professionals do not know why some men, and a small number of women,
develop a deviant sexual interest in children.545 Becker writes, ―In all likelihood, there is not one
causative factor, but rather multiple pathways by which a person develops a sexual attraction to
minors.‖546
[C] Multiple Victims Are Common
From a third to one-half of incest offenders also molest children outside the family.547 Becker
writes, ―Child molesters may engage in incestuous, as well as nonincestuous, abuse and may
target children of both genders.‖548 Abel and colleagues studied 561 child molesters.549 Sixtyseven percent of the offenders molested only girls, twelve percent molested only boys, and
twenty-one percent molested both.550 Fifty-six percent of the offenders engaged only in
nonincestuous abuse, twelve percent engaged only in incest, and twenty-three percent of
offenders molested their own and other children.
Sex offenders may have one or many victims. In Abel's research on 561 sex offenders, the
men victimized a total of 195,407 children!551 Men who molested only girls had an average of
twenty victims. Men who targeted boys averaged 150 victims.
543
Survivors of Child Sexual Abuse 14 (1995)(Thousand Oaks, Cal.: Sage).
544
545
Laura G. Kirsch, Amanda M. Fannitt & Judith V. Becker, Treatment of Adolescent and
Adult Sex Offenders, In John E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment
289-305 (3d ed. 2011)(Sage).
546
Judith V. Becker, Offenders: Characteristics and Treatment, 4 The Future of Children 176197, at 181 (1994).
547
Survivors of Child Sexual Abuse (1995) (Thousand Oaks, Cal.: Sage).
548
549
Gene G. Abel, Judith Becker, Jerry Cunningham-Rathner et al., Multiple Paraphilic
Diagnoses Among Sex Offenders, 16 Bulletin of the American Academy of Psychiatry & the Law
153-168 (1988).
550
153-168 (1988).
551
153-168 (1988).
118
[D] Cycle of Offending
For many sex offenders, deviant behavior is compulsive and repetitive.552 Salter describes
―the deviant cycle‖ of many offenders: ―Sexual abuse is frequently thought to be an accident or
happenstance. It is more accurate to think of it as a deviant cycle, an interlocking series of
thoughts, feelings, and behaviors that culminate in sexual assault.‖553 Ward and colleagues
describe the ―offense chain‖ of child molesters, ―This offense chain includes background
problems and factors that make the offender vulnerable, plus a series of steps including passive or
active planning on the part of the offender, distortions about the victim or about the offender's
rights and needs, sexual fantasies and arousal, and cognitive and affective consequences leading
to lapses or relapses.‖554
[E] Grooming
Despite claims of sex offenders that abuse ―just happened on the spur of the moment,‖ or
―when I was drunk,‖ many offenders plan their abuse by grooming their victims.555 Salter writes,
―Grooming appears nearly universal, either in place of or in addition to coercion as a technique
for gaining sexual access to children. The establishment (and eventual betrayal) of affection and
trust occupies a central role in the child molester's interactions with children.… To further reduce
the risk of exposure, many offenders follow a slow progression in which most of the time is spent
gaining the child's and the family's trust.‖556
Case law on grooming is described in § 6.28[A][4].
[F] Female Perpetrators
Most sex offenders are male.557 Females are responsible for five to twenty percent of sex
offenses.558 Female perpetrators offend against girls and boys.559 Many females who sexually
552
Survivors of Child Sexual Abuse (1995)(Thousand Oaks, Cal.: Sage).
553
554
Tony Ward, Kirsten Louden, Stephen M. Hudson, & William L. Marshall, A Descriptive
Model of the Offense Chain for Child Molesters, 10 Journal of Interpersonal Violence 452-472,
at 452 (1995).
555
See State v. Stafford, 157 Or. App. 445, 972 P.2d 47 (1998).
556
557
Association for the Treatment of Sexual Abusers, Reducing Sexual Abuse Through
Treatment and Intervention with Abusers (1996)(―The vast majority of offenders are male.
Studies indicate approximately eighty percent of sex offenses against children are committed by
males and approximately twenty percent are committed by females.‖).
558
Treatment and Intervention with Abusers (1996)(―The vast majority of offenders are male.
Studies indicate approximately eighty percent of sex offenses against children are committed by
males and approximately twenty percent are committed by females.‖); Alana D. Grayston &
119
abuse children do so in conjunction with a male.560
Female child molesters, like their male counterparts, are a heterogeneous group.561 Grayston
and Luca write, ―To date, one of the most consistent findings regarding female child molesters is
the high incidence of physical, emotional, and sexual abuse in their personal histories.‖562 Many
female offenders are victims of domestic violence.563 Although most female offenders are neither
psychotic nor grossly mentally ill, the majority have a range of personal problems, including
substance abuse and depression.564
§ 6.27 PSYCHOLOGICAL EVALUATION OF SEX
OFFENDERS
Several methods of psychological assessment are used to evaluate sex offenders. There is no
psychological test or technique that validly determines whether a person has or will engage in
deviant sexual behavior.565 The Association for the Treatment of Sexual Abusers Practice
Rayleen V. De Luca, Female Perpetrators of Child Sexual Abuse: A Review of the Clinical and
Empirical Literature, 4 Aggression and Violent Behavior 93-106 (1999).
559
Alana D. Grayston & Rayleen V. De Luca, Female Perpetrators of Child Sexual Abuse: A
Review of the Clinical and Empirical Literature, 4 Aggression and Violent Behavior 93-106
(1999).
560
(1999).
561
(1999); Donna M. Vandiver & Glen Kercher, Offender and Victim Characteristics of Registered
Female Sexual Offenders in Texas: A Proposed Typology of Female Sexual Offenders, 16 Sexual
Abuse: A Journal of Research and Treatment 121-137, at 122 (2004)(―[M]ost of the females are
young; they have an average ranging from 22 to 33. High percentages [of] the female sexual
offenders had experienced sexual abuse. Many report a history of drug and/or alcohol abuse,
indicating poor coping skills. In terms of mental illness, the majority of offenders is not
psychotic, but exhibits problems with depression and other personality disorders.‖).
562
Review of the Clinical and Empirical Literature, 4 Aggression and Violent Behavior 93-106, at 98
(1999).
563
(1999).
564
(1999).
565
Amanda M. Fanniff & Judith V. Becker, Specialized Assessment and Treatment of
Adolescent Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(―The two major
goals of specialized assessment methods are to assist in treatment planning and to identify
juveniles at high risk for reoffense to inform dispositional decision-making. One major area of
interest relevant to both of these goals is deviant sexual interest, as defined by arousal to
nonconsenting sex or to individuals who cannot consent. Deviant sexual interest has been
consistently identified as a risk factor for recidivism in combined populations of adults and
juveniles and has been consistently identified as a factor important to consider in treatment
120
planning for juveniles who have engaged in sexually inappropriate behaviors.… There are three
major methods of assessment that have been used to achieve these goals. Self-report instruments
have been developed that are designed to assess deviant sexual interest and cognitive distortions,
as well as other problems related to treatment planning. Objective, physiological assessment
measures have also been developed for the assessment of sexual interest. Finally, risk assessment
to date has involved instruments completed by a clinician relying on interview and/or collateral
data.… Adolescent Cognitions Scale. The Adolescent Cognitions Scale (ACS) is designed to
assess the cognitive distortions juveniles may endorse that support or justify inappropriate sexual
behavior. Unfortunately, test-retest reliability and internal consistency of this instrument appear
less than adequate.… Adolescent Sexual Interest Cardsort. The Adolescent Sexual Interest
Cardsort (ASIC) is a self-report measure of sexual interest, which consists of 64 vignettes.…
[T]he ASIC is subject to dissimulation, and therefore may only be useful among juveniles who
are highly disclosing. Another potential problem is the lack of data as to how non-offending
juveniles perform on this instrument.… Objective Assessment Instruments. Abel Assessment for
Sexual Interest. … The AASI measures viewing time to various categories of pictures as a
measure of sexual interest. Participants are not aware that viewing time is being measured,
making this instrument less likely to be susceptible to dissimulation. One highly critical study
investigating its psychometric properties found less than satisfactory results regarding the use of
this instrument with juvenile sex offenders (Smith & Fischer, 1999) [Smith, G., & Fischer, L.
(1999). Assessment of juvenile sexual offenders: Reliability and validity of the Abel Assessment
for Interests in Paraphilias. Sexual Abuse: A Journal of Research and Treatment, 11, 207-216].…
Assuming that sexual interest should be stable over short periods of time, the lack of adequate
test-retest reliability suggests that there is considerable error making results on this instrument
unstable. Smith and Fischer (1999) also reported problematic results of the validity of the AASI.
They reported no significant differences on viewing time between a group of sex offenders and a
control group of adolescents receiving treatment for problems other than sexual behavior.…
[C]ontinued research and refinement of the AASI appears necessary. Clinicians who choose to
include AASI results in written reports should note the current state of the literature in accordance
with the APA Ethical Principles.‖ ―… Plethysmography. Research on the reliability and validity
of plethysmography of juvenile sex offenders has been limited, likely due to the ethical concerns
associated with using an invasive procedure like the plethysmograph with minors. Only one study
has specifically examined the test-retest reliability of plethysmography with this population.…
Research on the validity of plethysmography with juveniles has produced some promising
results.… [I]t would be premature to consider the plethysmograph a valid assessment of deviant
arousal in all juveniles. It is possible that adolescents may successfully suppress arousal.… Until
further evidence of its utility is provided, the plethysmograph does not seem to be a necessary or
perhaps even appropriate instrument to use routinely in assessing juvenile sex offenders.…
Polygraph. … [T]he lack of evidence regarding the validity of the polygraph precludes
recommending it for use with juvenile sex offenders.… Risk Assessment Instruments. … Another
important area of sex offender specific assessment is the estimation of risk of reoffense. A large
body of research has established the validity of a number of instruments for the assessment of risk
of violent and sexual recidivism among adult sex offenders, including the Static-99, Minnesota
Sex Offender Screening Tool-Revised, Violence Risk Appraisal Guide, Sex Offender Risk
Appraisal Guide, Rapid Risk Assessment for Sex Offense Recidivism, and SVR-20. This body of
literature provides a wealth of information to draw from regarding the assessment of risk with
juvenile sex offenders. There are currently two instruments that have data to support their use
with juveniles: the Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II), and the Estimate
of Risk of Adolescent Sexual Offense Recidivism (ERASOR).… [T]he J-SOAP is a reliable
instrument that can detect differences within populations of juvenile sex offenders, but the
predictive validity of the instrument has yet to be established.… [With ERASOR] the resulting
121
instrument is somewhat unique in that is serves as an empirically-guided risk assessment
approach rather than an actuarial instrument, with clinicians using the list of relevant factors to
make a clinical risk rating of low, medium, or high.… There is also burgeoning evidence for the
validity of the ERASOR.… The research on risk assessment is quite promising, with both major
instruments demonstrating adequate psychometric properties and providing evidence of
concurrent validity. The future of these instruments, however, rests on research demonstrating
predictive validity of the instruments.… Given the results to date, there is reason to believe that
these instruments will be useful in predicting which juveniles will reoffend; however, given the
low base rate of sexual recidivism, setting cut points that have acceptable levels of false positives
and false negatives will likely prove difficult. Summary. Overall, there appears to be limited
evidence for use of specialized instruments during routine evaluations of adolescent sex
offenders.… While the field of juvenile sex offender assessment and treatment has developed
around the belief that these offenders are unique, the literature supporting specialized assessment
and treatment is not particularly strong.… Currently, the use of specialized assessment
instruments with juvenile sex offenders should proceed with caution; and evaluators submitting
reports to the legal system should note the limitations of the assessment procedures as
recommended in the APA Ethics Code.‖); Holly A. Miller, Amy E. Amenta, & Mary Alice
Conroy, Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals,
and Research Directions, 29 Law and Human Behavior 29-53, 37 (2005) (―In fact, no instrument,
or group of instruments, has yielded a clearly defined set of characteristics, traits, or personality
patterns for any group of sex offenders.‖); Tiffany Walsh & Zach Walsh, The Evidentiary
Introduction of Psychopathy Checklist-Revised Assesses Psychopathy in U.S. Courts: Extent and
Appropriateness, 30 Law and Human Behavior 493-507 (2006)(―Our review indicates that the
courts have generally spoken in favor of admitting PCL-R assessed psychopathy evidence under
both the Daubert and Frye admissibility standards. Indeed, in light of the widespread recognition
accorded the PCL-R as an empirically derived instrument, the measure appears to meet the
acceptance standard of Frye. p. 504. The PCL-R has been established to be a robust predictor of
violent recidivism among European American adult males. However, an equivalent body of
research has yet to accrue relating PCL-R to violent recidivism in female, African American, and
adolescent offenders. p. 505. Similarly, although the Psychopathy Checklist: Youth Version
(PCL:YV), has been developed to measure psychopathic traits in adolescents, the assessment of
psychopathy in this population has yet to accrue a comparable level of empirical support to the
PCL-R, and the application of the psychopathy construct to juveniles remains controversial. p.
505. The PCL-R is not a valid scientific measure of individual guilt for a specific behavior. p.
506).
Most experts agree that psychological tests cannot tell whether a man is a child molester.
Experts also agree that there is no psychological profile of a ―typical‖ child abuser. The most
convincing proof of the ―apparent normality‖ of child molesters comes from molesters
themselves. Consider the words of this man:
I want to describe a child molester I know very well. This man was raised by
devout Christian parents. As a child he rarely missed church. Even after he
became an adult he was faithful as a church member. He was a straight-A student
in high school and college. He has been married and has a child of his own. He
coached little league baseball. He was Choir Director at his church. He never
used any illegal drugs. He never had a drink of alcohol. He was considered a
clean-cut-all-American boy. Everyone seemed to like him. He was a volunteer in
numerous community civic functions. He had a well-paying career job. He was
considered ―well-to-do‖ in society. But from the age of thirteen he sexually
122
Standards and Guidelines provide: ―Members recognize, and when providing expert testimony,
acknowledge, that there is no known psychological or physiological test, profile, evaluation
procedure, or combination of such tools that prove or disprove whether an individual has
committed a specific sexual act. . . . Members do not provide expert testimony during the guilt
phase of a criminal trial from which a reasonable person would draw inferences about whether an
individual did or did not commit a specific sexual act.‖566 Hall and Crowther write, ―There
appears to be no psychological method of identifying sexual aggressors and predicting recurrence
of sexually abusive behavior that has unequivocal empirical support.‖567 Nichols and Molinder
add, ―No test, no device, has the power to pick out a sexually deviant person from any other
person in a crowd.‖568 Salter observes, ―Research confirms the fact that many sex offenders have
no pathology discernible by generic psychological tests or clinical interview.‖569 Becker and
Quinsey write, ―There are no psychological tests or techniques that indicate whether someone has
engaged in sexual behaviors with children; such questions are best left to detectives and the
courts.‖570
[A] Clinical Interview
The clinical interview is a common method for evaluating sex offenders. Although the
interview is useful for clinical purposes, rampant denial and minimization among sex offenders
renders the interview an unreliable marker of offending.571 Becker and Quinsey write, ―Interviews
of the offender are similar to other clinical interviews except the validity of the information
molested little boys. He never victimized a stranger. All of his victims were
friends. He is now serving a five-year term in prison for sexual abuse. I know this
child molester very well because he is me!!!
—(child molester of up to 100 male children)
Quoted in Anna C. Salter, Transforming Trauma: A Guide to Understanding and Treating
Adult Survivors of Child Sexual Abuse 30 (1995)(Thousand Oaks, Cal.: Sage).
See In re Detention of Robinson, 135 Wash. App. 772, 146 P.3d 451 (2006)(the Screening
Scale for Pedophilic Interests was an actuarial instrument not subject to Frye).
566
Association for the Treatment of Sexual Abusers, Practice Standards and Guidelines for
Members of the Association for the Treatment of Sexual Abusers (2005)(Beaverton, Oregon:
ATSA)(Standards 16.02 and 16.03).
567
Gordon C. Nagayama Hall & Janis H. Crowther, Psychologists' Involvement in Cases of
Child Maltreatment: Additional Limits of Assessment Methods, 46 American Psychologist 79-80,
at 80 (1991).
568
H.R. Nicholas & I. Molinder, Multiphasic Sex Inventory Manual 3 (1984)(Tacoma, Wash.:
Self-published).
569
Anna C. Salter, Transforming Trauma: A Guide to Understanding the Treating Adult
570
Judith V. Becker & Vernon L. Quinsey, Assessing Suspected Child Molesters, 17 Child
Abuse & Neglect 169-174, at 169 (1993).
571
Gordon C. Nagayama Hall & Janis H. Crowther, Psychologists' Involvement in Cases of
Child Maltreatment: Additional Limits of Assessment Methods, 46 American Psychologist 79-80,
at 80 (1991)(―Self-report measures in general may be particularly susceptible to deception on the
part of sexual offenders.‖); Patricia Nugent & Daryl G. Kroner, Denial, Response Styles, and
Admittance of Offenses Among Child Molesters and Rapists, 11 Journal of Interpersonal
Violence 475-486, at 475 (1996)(―denial among men accused or convicted of sexual offenses is
high‖).
123
provided by the offender is more likely to be suspect. Frequently, alleged child molesters distort
information, falsely deny that the alleged offence occurred, and report difficulty in recalling
events surrounding the offence.‖572
[B] Psychological Tests
The Minnesota Multiphasic Personality Inventory (MMPI) is a well accepted psychological
test, but the MMPI does not determine whether a person sexually abused a child.573 A number of
decisions recognize that the MMPI cannot determine whether a person is a pedophile.574 Becker
and Quinsey write that the MMPI ―has been used extensively in assessment of sexual offenders.
While the MMPI can be useful in clinical assessment for the purposes for which it was designed,
its discriminant validity in the assessment of child molesters is poor.‖575 Marshall and Hall
reviewed the literature on the MMPI and concluded that the MMPI should not be used as
evidence of whether a person sexually abused a child.576 Murphy and colleagues add, ―What the
MMPI literature actually suggests is that individual offenders against children vary tremendously
in their psychological functioning, as measured by the MMPI. No particular profile predicts a
propensity for sexual offending. A significant proportion of offenders may exhibit no measurable
psychopathology.‖577
[C] Abel Assessment of Sexual Interest
The Abel Assessment of Sexual Interest (ASSI) was created by Abel. The ASSI has two
572
Abuse & Neglect 169-174, 170 (1993).
573
Judith V. Baker & William D. Murphy, What We Know and Do Not Know About
Assessing and Treating Sex Offenders, 4 Psychology, Public Policy, and Law 116-137, at 122
(1998)(―there have been numerous studies using the Minnesota Multiphasic Personality Inventory
(MMPI) to evaluate sex offenders, and it is clear that there is a wide variety of profiles. These
profiles do not necessarily differ from other criminal or mental health populations, and there is no
single MMPI profile for sexual offenders.‖); Saul M. Levin & Lawrence Stava, Personality
Characteristics of Sex Offenders: A Review, 16 Archives of Sexual Behavior 57-79, 57
(1987)(Levin and Stava found methodological problems in most studies of the MMPI with sex
offenders. The researchers concluded that with the MMPI, ―negative or inconsistent findings
outweigh those of a positive nature.‖); Gordon C. Nagayama Hall & Janis H. Crowther,
Psychologists' Involvement in Cases of Child Maltreatment: Additional Limits of Assessment
Methods, 46 American Psychologist 79-80, at 79-80 (1991)(―The use of more common methods
of psychological assessment, such as the Minnesota Multiphasic Personality Inventory (MMPI) or
the Wechsler Adult Intelligence Scale-Revised (WAIS-R), to identify perpetrators is problematic
because these measures do not provide information specifically relevant to sexually aggressive
behavior against children.‖).
574
United States v. Banks, 36 M.J. 150, 165 (C.M.A. 1992)(in this case there was ―credible
expert testimony that the MMPI is not a reliable tool to predict pedophilia in particular‖); R.D. v.
State, 706 So. 2d 770 (Ala. Ct. Crim. App. 1997).
575
Abuse & Neglect 169-174, at 172 (1993).
576
William L. Marshall & G.C.N. Hall, The Value of the MMPI in Deciding Forensic Issues
in Accused Sex Offenders, 7 Sexual Abuse: A Journal of Research & Treatment 205 (1995).
577
William D. Murphy, Terri J. Rau, & Patricia J. Worley, Offender Treatment: The Perils
and Pitfalls of Profiling Child Sexual Abusers, 7 The APSAC Advisor 3-4, 28-29, at 4 (1994).
124
parts.578 Part I measures the time a subject pays attention to slides depicting various types of
sexual stimuli.579 Abel wrote, ―It is hypothesized that the longer a participant attends to a slide
while rating his sexual interest, the greater his sexual interest in the content of the slide.‖580 Part I
also consists of a questionnaire that asks about the subject's sexual behavior.
In Part II of the ASSI, the answers to the questionnaire and the subject's viewing times are
combined into a score. The score is subjected to statistical prediction equations to come up with a
prediction of the subject's sexual interest in children.
The ASSI has clinical value.581 The technique is not suitable to determine whether someone
578
Gene G. Abel, Alan Jordan, Joanne L. Rouleau, Robert Emerick, Sharen BarbozaWhitehead, & Candace Osborn, Use of Visual Reaction Time to Assess Male Adolescents Who
Molest Children, 16 Sexual Abuse: A Journal of Research and Treatment 255-265 (2004);
Amanda M. Fanniff & Judith V. Becker, Specialized Assessment and Treatment of Adolescent
Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(Abel Assessment for Sexual
Interest. ―The AASI measures viewing time to various categories of pictures as a measure of
sexual interest. Participants are not aware that viewing time is being measured, making this
instrument less likely to be susceptible to dissimulation. One highly critical study investigating its
psychometric properties found less than satisfactory results regarding the use of this instrument
with juvenile sex offenders (Smith & Fischer, 1999 [Smith, G., & Fischer, L. (1999). Assessment
of juvenile sexual offenders: Reliability and validity of the Abel Assessment for Interests in
Paraphilias. Sexual Abuse: A Journal of Research and Treatment, 11, 207-216].… Assuming that
sexual interest should be stable over short periods of time, the lack of adequate test-retest
reliability suggests that there is considerable error making results on this instrument unstable.
Smith and Fischer (1999) also reported problematic results of the validity of the AASI. They
reported no significant differences on viewing time between a group of sex offenders and a
control group of adolescents receiving treatment for problems other than sexual behavior.…
[C]ontinued research and refinement of the AASI appears necessary. Clinicians who choose to
include AASI results in written reports should note the current state of the literature in accordance
with the APA Ethical Principles.‖).
579
Gene G. Abel, Alan Jordan, Cynthia G. Hand, Laura A. Holland, & Alexandra Phips,
Classification Models of Child Molesters Utilizing the Abel Assessment for Sexual Interest, 25
Child Abuse & Neglect 703-718 (2001).
580
Child Abuse & Neglect 703-718, at 704 (2001).
581
Child Abuse & Neglect 703-718 (2001).
See United States v. Birdsbill, 243 F. Supp. 2d 1128, 1131 (D. Mont. 2003), aff'd, 97 Fed.
Appx. 721, 2004 WL 958061 (9th Cir. 2004)(the District Court ruled that the Abel Assessment
was irrelevant; ―There are several reasons that the AASI test results at issue are not relevant in
this case. First, the AASI is a psychological instrument to be used for treatment, not diagnostic
purposes, and it is not designed to detect whether a person has sexually abused children. ‗There
has never been a claim that The Abel Assessment could be used to screen pedophiles from
normals.‘ Ready v. Massachusetts, 2002 WL 1255800 (Mass. Super. Ct., May 17, 2002) (quoting
Dr. Gene G. Abel's Letter to the Editor, Sexual Abuse: A Journal of Research and Treatment).
Instead, the more typical and appropriate use of the instrument is to measure whether an admitted
pedophile has made psychological improvements as the result of a program of treatment.‖).
125
committed a crime.582 Abel writes that visual reaction time ―measures sexual interest. It cannot
possibly make a diagnosis. It cannot possibly measure guilt or innocence.‖583 The ASSI is
sometimes used by mental health professionals conducting psychological assessments as part of
proceedings to civilly commit sex offenders.584 ASSI is not sufficiently reliable for use in court.585
In United States v. White Horse,586 the Eighth Circuit ruled that the ASSI did not pass muster
under Daubert.
[D] Penile Plethysmography
A penile plethysmograph is a mechanical device that fits around the base of a flaccid penis.
With the device in place, the man is presented with deviant and nondeviant sexual stimuli, and his
erectile response is measured.587 Although the plethysmograph is a useful adjunct to treatment,
582
United States v. Birdsbill, 243 F. Supp. 2d 1128 (D. Mont. 2003), aff'd, 97 Fed. Appx.
721, 2004 WL 958061 (9th Cir. 2004)(unpublished)(the District Court ruled that the Abel
Assessment was irrelevant; ―There are several reasons that the AASI test results at issue are not
relevant in this case. First, the AASI is a psychological instrument to be used for treatment, not
diagnostic purposes, and it is not designed to detect whether a person has sexually abused
children. ‗There has never been a claim that The Abel Assessment could be used to screen
pedophiles from normals.‘ Ready v. Massachusetts, 2002 WL 1255800 (Mass. Super. Ct., May
17, 2002)(quoting Dr. Gene G. Abel's Letter to the Editor, Sexual Abuse: A Journal of Research
and Treatment). Instead, the more typical and appropriate use of the instrument is to measure
whether an admitted pedophile has made psychological improvements as the result of a program
of treatment.‖); State v. Brannon, 971 So. 2d 511 (La. Ct. App. 2007)(psychologist used Abel
assessment tool and other psychological tests to give very dubious testimony); People v. Franks,
195 Misc. 2d 698, 761 N.Y.S.2d 459 (2003)(Abel Assessment not sufficiently reliable); State v.
Austin, 727 N.W.2d 790 (N.D. 2007)(expert testimony of Abel Assessment properly excluded).
583
Gene G. Abel, Letter to the Editor, 12 Sexual Abuse: A Journal of Research and
Treatment 155-161, at 156 (2000).
584
Ready, Petitioner, 63 Mass. App. 171, 824 N.E.2d 474 (2005); State v. Youlten, 151 Ohio
App. 3d 518, 784 N.E.2d 768 (2003)(sex offender commitment proceeding; as part of risk
evaluation, Youlten was given the Abel Assessment); Care and Treatment of Tucker, 353 S.C.
466, 578 S.E.2d 719 (2003).
585
Ready, Petitioner, 63 Mass. App. 171, 824 N.E.2d 474 (2005).
586
316 F.3d 769 (8th Cir. 2003), cert. denied, 124 S. Ct. 116 (2003)(the District Court judge's
opinion in White Horse provides a thorough discussion of the ASSI. United States v. White
Horse, 177 F. Supp. 2d 973 (D. S.D. 2001), aff'd, 316 F.3d 769 (8th Cir. 2003).
587
Adolescent Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(―Research on the
reliability and validity of plethysmography of juvenile sex offenders has been limited, likely to
the ethical concerns associated with using an invasive procedure like the plethysmograph with
minors. Only one study has specifically examined the test-retest reliability of plethysmography
with this population.… Research on the validity of plethysmography with juveniles has produced
some promising results.… [I]t would be premature to consider the plethysmograph a valid
assessment of deviant arousal in all juveniles. It is possible that adolescents may successfully
suppress arousal.… Until further evidence of its utility is provided, the plethysmograph does not
seem to be a necessary or perhaps even appropriate instrument to use routinely in assessing
juvenile sex offenders.‖).
See United States v. Rhodes, 552 F.3d 624 (7th Cir. 2009)(describing plethysmograph); In re
Detention of Hughes, 346 Ill. App. 3d 636, 805 N.E.2d 725 (2004) (describing penile
126
experts on sex offenders warn against relying on the device in legal decision making. 588 Penile
response is subject to voluntary control, that is, ―faking.‖589
plethysmograph); State v. Ruiz, 131 N.M. 241, 34 P.3d 630 (Ct. App. 2001); State v. Gallegos,
220 P.3d 136, 145 (Utah 2009)(―Gallegos argues that the trial court erred in excluding the
testimony of Dr. Peter Byrne, who should have been permitted to testify that ‗based on the
psychosexual testing he administered, it was his expert opinion that [the defendant] was not a
―pedophile‖ and not attracted to children. Moreover, Gallegos contends that Dr. Byrne's
testimony was relevant under rule 401 of the Utah Rules of Evidence to establish a pertinent
character trait, that, that Gallegos was not a pedophile. The State, on the other hand, argues that
whether Gallegos is a pedophile is simply not proper character evidence as contemplated by rule
404(a)(1). More importantly, because the penile plethysmograph (PPG) that formed the basis of
Dr. Byrne's testimony was ‗invalid,‘ the State contends that the test is also irrelevant under rule
401.… [W]e hold that the trial court erred in determining that the proffered expert testimony was
irrelevant. Nevertheless, we further hold that the error was harmless.‖); In re Halgren, 156 Wash.
2d 795, 132 P.3d 714 (2006)(allowable for expert in sex offender commitment proceeding to rely
in part on plethysmograph)..
588
Gene G. Abel & Edward B. Blanchard, The Measurement and Generation of Sexual
Arousal in Male Sexual Deviants, In Michael Hersen, Richard M. Eisler, & Peter M. Miller
(Eds.), vol. 2 Progress in Behavior Modification (1976); Barlow, Assessment of Sexual Behavior,
In A. Cirminero, K. Calhourn, & H. Adams (Eds.), Handbook of Behavior Assessment 461
(1977); Zuckerman, Psychological Measures of Sexual Arousal in the Human, 75 Psychological
Bulletin 297 (1971); Robert A. Prentkey, Raymond A. Knight, & Austin F.S. Lee, Risk Factors
Associated with Recidivism Among Extrafamilial Child Molesters, 65 Journal of Consulting and
Clinical Psychology 141-149, 142 (1997)(among the ―drawbacks‖ of phallometric assessment is
―the increased likelihood in forensic settings that dissimulation may compromise the validity of
the assessment‖).
See Billips v. Commonwealth, 48 Va. App. 278, 630 S.E.2d 340 (2006)(plethysmograph
acceptable at sentencing; dissent provides thorough review of the literature on the device).
589
Adolescent Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(―Research on the
reliability and validity of plethysmography of juvenile sex offenders has been limited, likely to
the ethical concerns associated with using an invasive procedure like the plethysmograph with
minors. Only one study has specifically examined the test-retest reliability of plethysmography
with this population.… Research on the validity of plethysmography with juveniles has produced
some promising results.… [I]t would be premature to consider the plethysmograph a valid
assessment of deviant arousal in all juveniles. It is possible that adolescents may successfully
suppress arousal.… Until further evidence of its utility is provided, the plethysmograph does not
seem to be a necessary or perhaps even appropriate instrument to use routinely in assessing
juvenile sex offenders.‖); Holly A. Miller, Amy E. Amenta, & Mary Alice Conroy, Sexually
Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research
Directions, 29 Law and Human Behavior 29-54 (2005)(―the plethysmograph can be faked and
problems with its generalizability and sensitivity exist.‖); Gordon C. Nagayama Hall & Janis H.
Crowther, Psychologists' Involvement in Cases of Child Maltreatment: Additional Limits of
Assessment Methods, 46 American Psychologist 79-80, at 80 (1991)(penile plethysmography
―may be even more problematic than other [methods] in assessing potential abusers because of its
susceptibility to both false positive and negative findings, and the susceptibility of the test to
faking‖); Patricia Nugent & Daryl G. Kroner, Denial, Response Styles, and Admittance of
Offenses Among Child Molesters and Rapists, 11 Journal of Interpersonal Violence 475-486, at
476 (1996)(―men who deny their offenses may also repress or deny their sexual preferences,
decreasing the utility of pallometric assessments. Although the presence of deviant arousal most
127
Lanyon and colleagues write, ―In cases of child sexual abuse, the use of the penile
plethysmograph is gaining favor. This procedure, however, is even more controversial [than the
polygraph], and is not considered appropriate in adversarial situations.‖590 In another article,
Lanyon writes, ―A considerable amount of empirical research has been conducted on the
plethysmograph, and this work shows that it usually gives findings that are significant in research
studies but are not accurate enough to use in individual diagnostic situations, particularly in
adversarial settings.‖591 Becker and Quinsey add that phalometric assessment cannot ―detect
whether someone has committed a specific sexual offense.‖592 Becker and Murphy write that
phallometric assessment ―should never be used exclusively to aid in forensic decision making.
There are a number of threats to the validity of this form of assessment including the faking of
erectile responses.‖593
Courts that have considered penile plethysmography generally rule that the technique is not
sufficiently reliable for use in court.594
likely reflects true deviant interests, the lack of deviant arousal does not necessarily indicate
either the presence or absence of deviant sexual arousal.‖).
590
Richard I. Lanyon, Stephen E. Dannenbaum, & Alan R. Brown, Detection of Deliberate
Denial in Child Abusers, 6 Journal of Interpersonal Violence 301 (1991).
591
Richard I. Lanyon, Psychological Assessment Procedures in Sex Offending, 32
Professional Psychology, Research and Practice 253-260, 255 (2001)(―Some studies have failed
to find the expected differences between offenders and control subjects, however. Several reasons
for the limitations of penile plethysmography have been identified. First, normal men tend to
show some degree of arousal to deviant stimuli. Second, it is generally agreed that men can
inhibit their responses when motivated to do so. The third and most serious limitation of
plethysmography is that it is a subjective procedure, lacking standardization in both
administration and interpretation. For these reasons, the literature has recommended against the
use of plethysmography for assessment use in adversarial settings.‖).
592
Abuse & Neglect 169-174, at 172 (1993).
593
Judith V. Becker & William D. Murphy, What We Know and Do Not Know About
Assessing and Treating Sex Offenders, 4 Psychology, Public Policy, and Law 116-137 (1998).
594
Doe v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000)(―courts are uniform in their assertion
that the results of penile phethysmographs are inadmissible as evidence‖); United States v.
Powers, 59 F.3d 1460 (4th Cir. 1995), cert. denied, 116 S. Ct. 784 (1996)(plethysmograph not
reliable under Daubert); R.D. v. State, 706 So. 2d 770 (Ala. Ct. Crim. App. 1997); Gentry v.
State, 213 Ga. App. 24, 443 S.E.2d 667, 669 (1994)(―It appears that those states that have
addressed the issue of the admissibility of plethysmograph evidence have rejected the technique,
due to its unreliability and lack of verifiable certainty.‖); In re Detention of Hughes, 346 Ill. App.
3d 636, 805 N.E.2d 725 (2004); State v. Ruiz, 131 N.M. 241, 34 P.3d 630 (Ct. App. 2001)(during
cross-examination of defense expert, prosecutor asked expert whether he performed a penile
plethysmograph on defendant, which prosecutor suggested was customarily used to identify
pedophiles; expert said no; a nontestifying expert had given the test to defendant, and defendant
―passed‖; defense counsel argued that the testifying expert should be allowed to see the results of
the test defendant passed and comment on them during re-direct despite the fact that the
plethysmograph did not pass Daubert; Court of Appeals ruled that under doctrine of curative
admissibility, the testifying expert should have been allowed to mention the test since the
prosecutor brought it up); State v. Spencer, 119 N.C. App. 662, 459 S.E.2d 812 (1995)(penile
plethysmograph properly excluded as not reliable); In re A.V., 849 S.W.2d 393 (Tex. Ct. App.
1993)(party offering results of plethysmography did not prove that technique passes test for novel
scientific evidence; therefore appellate court ignored results); State v. Kallin, 877 P.2d 138 (Utah
128
In State v. Ruiz,595 defendant was charged with child sexual abuse. During the defense casein-chief, a psychologist testified that defendant did not fit the profile of a pedophile. On crossexamination, the prosecutor asked the psychologist whether he had performed a penile
plethysmograph test on defendant. The prosecutor described the plethysmograph as a test
―customarily used to identify pedophiles.‖ The psychologist stated that he did not use the
plethysmograph. Before beginning re-direct examination, defense counsel requested a recess to
allow the psychologist to review another psychologist's report indicating that defendant had
―passed‖ a plethysmograph administered by the other psychologist. Defense counsel
acknowledged that the plethysmograph is not reliable under Daubert. Nevertheless, the defense
argued that the prosecutor's cross-examination left the jury with the impression that defendant had
intentionally avoided taking a test for pedophilia, and that the results of the plethysmograph
should be admitted to set the record straight. The trial court did not permit the explanation, but
the New Mexico Court of Appeals disagreed, holding the results of the plethysmograph should
have been admitted under the doctrine of curative admissibility.
[E] Polygraph
The results of polygraph examinations are generally inadmissible at trial. Following
conviction, however, the polygraph appears to be a useful adjunct to therapy for certain sex
offenders.596
§ 6.28 EXPERT TESTIMONY REGARDING
OFFENDER PROFILES
Sex offenders are a heterogeneous lot with few shared characteristics apart from a
predilection for deviant sexual behavior.597 There is no psychological test that validly detects
1994)(defendant offered expert testimony from a mental health professional who relied in part on
results of penile plethysmography; trial judge excluded the evidence because the expert's
―reliance on a penile plethysmograph was not supported by evidence of reliability sufficient to
warrant admission.‖ 877 P.2d at 142; Supreme Court ruled that the trial judge did not err in
excluding the evidence); Billips v. Commonwealth, 48 Va. App. 278, 630 S.E.2d 340
(2006)(plethysmograph acceptable at sentencing; dissent provides thorough review of the
literature on the device); In re Marriage of Parker, 91 Wash. App. 219, 957 P.2d 256 (1998)(―The
weight of authority from other jurisdictions overwhelmingly holds that the plethysmograph does
not produce information on which a court can rely to decide that an individual is or is not sexually
deviant.‖).
595
131 N.M. 241, 34 P.3d 630 (Ct. App. 2001).
596
Adolescent Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(―the lack of
evidence regarding the validity of the polygraph preclude recommending it for use with juvenile
sex offenders.‖ p. 270); Don Grubin, Lars Madsen, Shaun Parsons, Dan Sosnowski, & Brent
Warberg, A Prospective Study of the Impact of Polygraphy on High-Risk Behaviors in Adult Sex
Offenders, 16 Sexual Abuse: A Journal of Research and Treatment 209-222, at 219-220
(2004)(―It was found that the polygraph resulted in offenders reporting a large amount of
behaviors of concern that were not known to supervising probation officers or treatment
providers, but also that expectation of a polygraph test appeared to assist offenders in avoiding or
controlling such behaviors.‖).
597
Treatment and Intervention with Abusers (1996)(policy statement of the Association for the
129
persons who have or will sexually abuse children.598 Thus, it is appropriate to conclude that there
is no profile of a ―typical‖ child molester.599 Becker and Murphy write, ―There is clear evidence
in the sex offender treatment field that there is no specific profile of a sexual offender. It also
should be very clear that a mental health professional cannot answer the question of whether
someone, even if he or she is a known sex offender, has committed a specific offense at a specific
time. Mental health professionals should not attempt to address this question for the legal
system.‖600
[A] Profile Evidence Offered by the Prosecution
Despite lack of a reliable profile, a prosecutor occasionally offers expert testimony describing
the character traits of a ―typical‖ child molester.601 Such testimony should be excluded for legal
Treatment of Sexual Abusers) (―It is important to understand that sex offenders are not all the
same and, in fact, this heterogeneous group of individuals includes a tremendous variety in age,
psychological profile, and history offending.‖); Judith L. Herman, Sex Offenders: A Feminist
Perspective, in W.L. Marshall, D.R. Lewis, & H.E. Barbaree, Handbook of Sexual Assault:
Issues, Theories, and Treatment of the Offender 177, 180 (1990)(New York: Plenum Press)(―The
most striking characteristic of sex offenders, from a diagnostic standpoint, is their apparent
normality.‖); William D. Murphy, Terri J. Rau, & Patricia J. Worley, The Perils and Pitfalls of
Profiling Child Sex Abusers, 7 APSAC Advisor 3 (1994)(newsletter of the American Professional
Society on the Abuse of Children)(―What we now know is that offenders against children are a
very diverse group, showing a range of psychological dysfunction from none to severe and a
variety of sexual arousal patterns from normal to quite deviant.‖); John E.B. Myers, Jan Bays,
Judith V. Becker, David L. Corwin, & Karen J. Saywitz, Expert Testimony in Child Sexual
Abuse Litigation, 68 Nebraska Law Review 1-147, at 142 (1989)(―Sex offenders are a
heterogeneous group with few shared characteristics apart from a predilection for deviant sexual
behavior. Furthermore, there is no psychological test or device that reliably detects persons who
have or will sexually abuse children.… There is no profile of a ‗typical‘ child molester.‖).
598
See § 6.27.
599
Assessing and Treating Sex Offenders, 4 Psychology, Public Policy, and Law 116-137, 123
(1998) (―There is clear evidence in the sex offender treatment field that there is no specific profile
of a sexual offender.‖); Anna C. Salter, Transforming Trauma: A Guide to Understanding and
Treating Adult Survivors of Child Sexual Abuse (1995) (Thousand Oaks, Cal.: Sage).
See United States v. Banks, 36 M.J. 150 (C.M.A. 1992); R.D. v. State, 706 So. 2d 770 (Ala.
Ct. Crim. App. 1997); People v. McAlpin, 283 Cal. Rptr. 382, 812 P.2d 563, 571 (1991);
Flanagan v. State, 625 So. 2d 827 (Fla. 1993); Gay v. State, 607 So. 2d 454 (Fla. Dist. Ct. App.
1992); Turtle v. State, 600 So. 2d 1214 (Fla. Dist. Ct. App. 1992).
600
Assessing and Treating Sex Offenders, 4 Psychology, Public Policy, and Law 116-137, 123
(1998).
601
United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988); United States v. Dollente, 45 M.J.
234, 241 (C.A.A.F. 1996)(court rejected profile evidence); United States v. Banks, 36 M.J. 150
(C.M.A. 1992)(court rejected evidence of profile of family in which sexual abuse is likely to
occur); United States v. August, 21 M.J. 363 (C.M.A. 1986); Flanagan v. State, 625 So. 2d 827
(Fla. 1993)(court rejected such evidence); State v. Hester, 114 Idaho 688, 760 P.2d 27
(1988)(state could not offer expert testimony during its case-in-chief regarding character traits
found in child molesters, or that defendant possessed such traits); Buzzard v. State, 669 N.E.2d
996 (Ind. Ct. App. 1996)(see Lasater v. Lasater, 809 N.E.2d 380 (Ind. Ct. App. 2004),
130
and scientific reasons.
[1] Rules of Evidence
When a prosecutor offers expert testimony that the defendant fits the profile of a ―typical‖ sex
offender, child molester, pedophile, or rapist, the prosecutor is offering character evidence barred
by Rule 404(a).602 In United States v. Gillespie,603 for example, defendant was charged with
sexual abuse of his three-year-old goddaughter. Defendant acknowledged that the child had been
abused, but denied responsibility. The government offered expert testimony to rebut what it
characterized as defendant's assertion that he could not have abused the child. The court
summarized the expert's testimony as follows: ―Dr. Maloney testified that the characteristics of a
molester include an early disruption in the family environment, often with one parent missing; a
relationship with the parent of the opposite sex who is dominant; unsuccessful relationships with
women; a poor self-concept; and general instability in the background.‖604 The trial judge
admitted the expert's testimony. In reversing the ensuing conviction, the Ninth Circuit ruled that
such testimony constituted inadmissible character evidence designed to establish that the
defendant had a propensity for child sexual abuse.605
[2] Scientific Reasons to Exclude Profile Evidence
Although Rule 404(a) is a sufficient basis to exclude prosecution expert testimony that
defendant meets the profile of a sex offender, there is an additional reason to exclude such
evidence. Based on the present state of scientific and clinical knowledge, there is no
psychological profile of a ―typical‖ sex offender, child molester, pedophile, or rapist.
distinguishing Buzzard); State v. Brannon, 971 So. 2d 511 (La. Ct. App. 2007)(psychologist used
psychological tests as basis for dubious expert testimony amounting to profile testimony;
―Defendant argues that it was reversible error to permit Dr. Brennan to testify to the Abel Sexual
Interest Assessment test results which showed that there was an eighty-one percent chance that he
acted out sexually with children and that he should be expected to falsely deny that fact.‖
Although it seems clear defendant was correct, the Court of Appeal rejected his appeal); State v.
Clements, 244 Kan. 411, 770 P.2d 447 (1989); Commonwealth v. Federico, 425 Mass. 844, 683
N.E.2d 1035, 1039 (1997)(―with respect to the accused, the expert may not provide profiles or
testify as to the typical attributes or characteristics of the perpetrators of child abuse.‖); State v.
Braham, 67 Wash. App. 930, 841 P.2d 785 (1992)(state offered expert testimony describing
―grooming process‖ that perpetrators often use to get close to children they intend to victimize;
expert testimony was offered during state's case-in-chief as substantive evidence of guilt; in
instructive opinion, court of appeal reversed).
See Annotation, Admissibility of Expert Testimony as to Criminal Defendant's Propensity
Toward Sexual Deviation, 42 A.L.R.4th 937 (1985).
602
Fed. R. Evid. 404(a) (stating, ―Evidence of a person's character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion‖).
See Flanagan v. State, 625 So. 2d 827, 829 (Fla. 1993)(―If anything, this profile evidence
tended to show that because Flanagan and his house had certain traits which fit Dr. Goslin's child
sex offender profile, he necessarily sexually abused his daughter. Establishing that a defendant
has a certain character trait in order to show he acted in conformity with that trait on a certain
occasion is forbidden by the rules of evidence.‖).
603
852 F.2d 475 (9th Cir. 1988).
604
852 F.2d at 480.
605
Fed. R. Evid. 404(a).
131
The testimony offered in Gillespie, quoted above, is a good example of the dangers of
offender profile evidence. In Gillespie, the expert's testimony describing offender characteristics
was so general and ambiguous that it lacked any probative value. Thousands of men who would
never think of abusing a child possess the personality traits described by the expert. The risk is
high that the jury will be misled by such unreliable testimony.
[3] Prosecution Evidence That There Is No Profile of a
Typical Offender
Conceding that the prosecutor may not offer expert testimony that the defendant fits the
profile of a ―typical‖ child molester, may the prosecutor go to the opposite extreme? May the
prosecutor offer expert testimony that there is no profile of a ―typical‖ child molester?606 In
People v. McAlpin,607 the California Supreme Court said ―yes.‖ The court approved ―expert
testimony that there is no profile of a ‗typical‘ child molester, and that such persons are found
instead in all walks of life.‖608 The court wrote:
It is reasonable to conclude that many jurors would tend to rely not so much on
their personal intuition but on the widespread public image of the child molester
as an old man in shabby clothes who loiters in playgrounds or schoolyards and
lures unsuspecting children into sexual contact by offering them candy or
money.…
This stereotype, however, is false.… ―Thus, it is appropriate to conclude that
under the current state of scientific knowledge, there is no profile of a ‗typical‘
child molester.‖
In the case at bar [the expert] was prepared to give expert testimony to the
foregoing effect. Such testimony would therefore ―assist the trier of fact.‖609
[4] Expert Testimony Describing the Grooming Process
Prosecutors occasionally offer expert testimony on the grooming process.610 In Haakanson v.
606
See People v. McAlpin, 283 Cal. Rptr. 382, 812 P.2d 563 (1991).
283 Cal. Rptr. 382, 812 P.2d 563 (1991).
608
812 P.2d at 570.
609
812 P.2d at 570-571 (citations omitted).
610
United States v. Hitt, 473 F.3d 146 (5th Cir. 2006)(Mann Act prosecution for transporting
14-year-old across state lines for purpose of sexually abusing child; ―The government presented
sufficient circumstantial evidence from which a jury could rationally conclude that Hitt and
Causey had the illicit intent necessary to support the Mann Act convictions. The government
presented expert testimony by Dr. Seiden that persons who sexually abuse children engage in a
‗grooming process‘ designed to reduce resistance to sexual advances. This process, according to
testimony, includes gift-giving, isolating the victim from his guardians, and activity designed to
desensitize the victim to sexual advances, e.g., touching in an innocuous manner and thereafter
escalating the sexual nature of the touches.‖); United States v. Johnson, 132 F.3d 1279 (9th Cir.
1997); United States v. Young, 50 M.J. 717, 726 (Army Ct. Crim. App. 1999), aff'd, 58 M.J. 15
(C.A.A.F. 2002); Jones v. United States, 990 A.2d 970 (D.C. 2010); Howard v. State, 281 Ga.
App. 797, 637 S.E.2d 448 (2006); State v. Vidrine, 9 So. 3d 1095, 1111 (La. Ct. App.
2009)(expert's ―opinion regarding the conduct of the Defendant, which she classified as
‗grooming‘ was unduly prejudicial because it suggested Defendant's conduct fit the pattern of a
607
132
State,611 for example, defendant was charged with sexual abuse of three adolescent girls. The
state's first witness was a police officer who described techniques employed by child abusers to
ingratiate themselves to children. Defendant objected that such testimony was inadmissible
because it described a sex offender profile. On appeal, the state conceded that the trial court erred
in admitting the officer's testimony. The state attempted unsuccessfully to persuade the Alaska
Court of Appeal that the error was harmless. The appellate court held, ―The prosecution may not
introduce a profile to show that the defendant is more likely to have committed an offense
because the defendant fits within that profile.‖612 Such evidence violated the rule against character
evidence.613
On occasion, evidence of grooming may be admissible to prove intent, plan, or modus
operandi.614 In United States v. Romero,615 the Seventh Circuit broke new ground.616 The
sexual offender.‖); State v. Berosik, 352 Mont. 16, 214 P.3d 776 (2009)(―The testimony of the
State's expert witness gave general information about grooming; that is, the process of eroding a
victim's boundaries to physical touch and desensitizing them to sexual issues. Her testimony
concerned a subject about which lay persons would have little or not experience. She based her
opinions on her experiences and research in the field. The expert testimony is relevant in that it
provided the jury with information about how research and experience shows abuse of a child
oftentimes does not occur all of a sudden. It provided evidence that young victims sometimes
delay in disclosing abuse, disclose the abuse piecemeal, and described how they react to having
been sexually abused. Berosik's defense was that Wanda and her daughters fabricated their
allegations against him because they wanted to be rid of him for taking away the daughters' newfound freedom and because he was going to expose consensual sex with a boyfriend, which
would result in criminal charges against him. In the fact of this defense, a jury could conclude the
evidence is probative in judging the credibility of the State's witnesses, including B.W. and R.W.,
and the decision whether the charges had, or had not, been proven beyond a reasonable doubt.‖);
State v. Hansen, 304 Or. 169, 743 P.2d 157 (1987)(state offered the testimony of a police officer
describing the techniques used by child molesters to get close to their victims. The court ruled
that such evidence ―has no bearing on whether a person who does these things is a child abuser.‖
743 P.2d at 161. Thus, the evidence was irrelevant.); State v. Stafford, 157 Or. App. 445, 972
P.2d 47 (1998); Shannon v. State, 105 Nev. 782, 783 P.2d (1989)(approving testimony on
methods used by pedophiles to get close to victims); Hernandez v. State, 973 S.W.2d 787 (Tex.
Ct. App. 1998); Dunnington v. State, 740 S.W.2d 899, 903 (Tex. Ct. App. 1987)(testimony on
grooming practices not beyond ken of average juror, therefore, expert testimony not needed).
611
760 P.2d 1030 (Alaska Ct. App. 1988).
612
Haakanson v. State, 760 P.2d 1030, 1036 (Alaska Ct. App. 1988).
613
Haakanson v. State, 760 P.2d 1030, 1036 (Alaska Ct. App. 1988)(―The weight of authority
clearly suggests that Rule 404(a) prohibits the profile testimony introduced at trial, unless the
defense has raised the issue first.‖).
614
United States v. Long, 328 F.3d 655, 661-662 (D.C. Cir. 2003)(defendant was a minister
and substitute teacher; he was charged with sexually abusing six boys; two adults, FM and AG,
testified that they had been similarly molested by defendant; ―The chief theory of Long's defense
was that the six alleged minor victims fabricated their tale of sexual abuse. Long thus denied not
that he had a close relationship with the boys, but rather that he had ever engaged in sexual
activity with them. The testimony of FM and AG was relevant to show Long engaged in a
‗pattern of operation,‘ that lends credence to the minors' assertions that in their cases as well the
seemingly innocent behavior culminated in sexual contact. The manner in which Long developed
a relationship with the minor boys was strikingly similar to the way in which he ingratiated
himself to FM and AG.… So too, the testimony of FM and AG met the threshold level of
similarity to the charged events and tended to establish that Long's pattern of ingratiation was
133
defendant in Romero was prosecuted for kidnapping and traveling in interstate commerce to
engage in sexual activity with a minor. Defendant met the minor via the Internet. At trial, there
was a dispute over whether defendant intended to engage in sexual activity with the boy. Kenneth
Lanning, a Special Agent with the F.B.I.'s Behavioral Sciences Unit, and an expert on sex
offenders, testified for the prosecution.617 The Seventh Circuit wrote:
Lanning then opined that child sex offenders fall on a spectrum from ―situational
sex offenders,‖ whose activities are based on an accident or circumstance, to
―preferential sex offenders,‖ who have a definite preference for sexual contact
with children and methodically pursue such contact. He identified four general
traits usually exhibited by preferential sex offenders, all of which he had
described in published materials long before the Romero case.
First, the conduct of a preferential child molester ―is not a temporary,
opportunistic kind of thing,‖ but ―occur[s] over a long period of time and is
extremely persistent.‖ …
Second, Lanning said that preferential sex offenders have very specific
animated by an intent to engage in sexual contact.‖); Jones v. United States, 990 A.2d 970 (D.C.
2010); State v. Taylor, 821 So. 2d 633, 641 (La. Ct. App. 2002)(―S.T.'s videotape established that
Taylor grabbed her by the shirt and pulled her into the bathroom; S.T. told him to leave her alone,
but he still locked her in while he took a shower, and later told her that he would marry her when
she got older. This is strikingly similar to L.T.'s testimony that Taylor called her into the
bathroom, made her engage in sexual acts with him, then kept her in the bathroom while he took a
shower. Notably, Dr. Springer testified that molesters of small children often ‗groom‘ their
victims by gradually leading them into sexual contact. This is consistent with Taylor's ‗promise‘
to marry S.T. when she got older. In short, this evidence is sufficient and relevant to show
Taylor's design or plan in abusing his young nieces.‖).
615
189 F.3d 576 (7th Cir. 1999), cert. denied, 529 U.S. 1001 (2000).
616
United States v. Hayward, 359 F.3d 631 (3d Cir. 2004); United States v. Long, 328 F.3d
655 (D.C. Cir. 2003)(the D.C. Circuit approved expert testimony from F.B.I. Agent Kenneth
Lanning describing ―the behavior of a class of criminals he termed ‗preferential sex offenders,‘
whose sex offenses are characterized by ‗paraphilia,‘ or ‗an attaction to or intense fantasies …
involving certain elements.‘‖ 328 F.3d at 665. The court noted, ―This court has generally
permitted expert testimony regarding the modus operandi of a certain type of criminal offender.…
Lanning's testimony was designed to aid the jury in understanding the modus operandi of
preferential sex offenders. The Seventh Circuit held in Romero that Lanning's testimony was
critical in dispelling from the jurors' minds the widely held stereotype of a child molester as ‗a
dirty old man in a wrinkled raincoat‘ who snatches children off the street as they wait for the
school bus. Similarly, the district court here determined that the average layperson lacks
knowledge regarding the manner in which preferential sex offenders operate. Long was a minister
of the church and a substitute teacher, positions a juror would ordinarily view as held by lawabiding citizens of high moral character. A juror would also be familiar with the well-known fact
that young children are impressionable and do not always tell the truth, whether because of
exposure to an ambiguous and unfamiliar act, probing questions about matters related to sex, or a
desire to please the inquisitor. As the government also notes, Lanning's testimony helped to rebut
Long's defenses of innocent intent and fabrication. Under the circumstances, the district court did
not abuse its discretion in concluding that Lanning's expert testimony was admissible under Rule
404(a).‖ 328 F.3d at 667-668).
617
United States v. Raymond, 700 F. Supp. 2d 142 (D. Maine 2010)(rejecting testimony from
Lanning); Jones v. United States, 990 A.2d 970 (D.C. 2010)(testimony from Lanning).
134
interests and that they focus on certain kinds of children. Sometimes this
specificity—for example, ―a preference for boys 10 to 15; for girls, 3 to 5, or
something like that‖—is caused by the offender's unusual arousal patterns.
Sometimes the preference is more pragmatic. For example, some offenders
―target children who come from dysfunctional families and broken homes‖ or
who suffer from ADD, because those children are easier to manipulate.
Third, Agent Lanning explained that preferential sex offenders typically
―identify a need in a child and then move forward to temporarily fill that need in
the child as part of this process.‖ …
Finally, Lanning testified that preferential offenders ―engage in fantasy and
need-driven behavior.‖ …
After extensive testimony regarding each of these four traits and examples of
actions that fit these traits, Agent Lanning wrapped up his direct testimony by
explaining how the jury should use his testimony. He hoped it would help the
jury get past popular conceptions of child sex offenders as ―strangers who snatch
and grab children‖ by ―dragging then into a car,‖ or as parents or stepparents who
molest children in the home.…
The defense claim that the district court erred in finding that Lanning's
testimony in general would be reliable and helpful to the jury is baseless. The
testimony was critical in dispelling from the jurors' minds the widely held
stereotype of a child molester as a ―dirty old man in a wrinkled raincoat‖ who
snatches children off the street as they wait for the school bus. Many real life
child molesters use modern technology and sophisticated psychological
techniques to ―seduce‖ their victims.
This court has recognized the value of expert testimony in explaining a
complicated criminal methodology that may look innocent on the surface but is
not as innocent as it appears. Such modus operandi evidence has proven useful in
drug trafficking cases.…
In the same way, the main thrust of Agent Lanning's testimony described the
modus operandi of modern child molesters: devoting large amounts of time to
finding and establishing relationships with children; choosing emotionally or
mentally disturbed children because of their susceptibility to manipulation;
probing the child's needs and interests and then mirroring those needs or
attempting to fulfill them; and engaging in compulsive behavior even when that
behavior increases the risk of getting caught. This testimony illuminated how
seemingly innocent conduct such as Romero's extensive discussions with Erich
about UFO's and his troubled home life could be part a seduction technique.…
[T]here is no question that allowing Agent Lanning to testify in our case was
generally proper because his testimony was helpful to the jury in understanding
how child molesters operate—something with which most jurors would have
little experience.…
The bulk of Lanning's testimony, however, did not have anything to do with
―character.‖ … Although Agent Lanning used a profile of the four major
―characteristics‖ of a preferential sex offender, he focused on the behavior and
actions of such offenders to explain their techniques or modus operandi.…
135
Presenting character evidence is an attempt to use a person's personality or
psychological propensity to prove what the person did. Testimony that a
defendant is hot-tempered might be used to prove that he threw the first punch in
a fight. Agent Lanning's testimony did exactly the opposite. It was an attempt to
use Romero's actions to prove his psychological propensities—his intentions for
Erich. As such, it was not really character evidence at all. To the extent that
Agent Lanning discussed the preferences and psychological proclivities of sex
offenders, he did so only to elaborate on his behavior-driven analysis of their
modus operandi.618
[B] Profile Evidence Offered by the Defense
In a number of decisions, the defense offered expert testimony that the defendant did not fit
the profile of a ―typical‖ child molester.619 As was the case with profile evidence offered by the
618
189 F.3d at 583-585, 587.
United States v. Powers, 59 F.3d 1460 (4th Cir. 1995), cert. denied, 116 S. Ct. 784
(1996)(rejecting defendant's expert psychological testimony); United States v. Dorsch, 34 M.J.
1042 (N-M.C.M.R. 1992); Wyatt v. State, 578 So. 2d 811 (Fla. Dist. Ct. App. 1991)(court
rejected defendant's proposed expert testimony that defendant did not fit profile of pedophile
because such opinion is not admissible under Florida evidence law); Hudson v. State, 462 S.E.2d
775, 778 (Ga. Ct. App. 1995)(―This court has repeatedly held that such testimony is not
admissible in Georgia.‖); Jennette v. State, 197 Ga. App. 580, 398 S.E.2d 734 (1990)(rejecting
defendant's expert testimony that defendant did not fit profile of pedophile; testimony of no help
to jury); State v. Hulbert, 481 N.W.2d 329 (Iowa 1992)(trial court did not abuse its discretion in
excluding expert testimony that defendant did not match profile of persons who sexually abuse
children); State v. Hughes, 841 So. 2d 718, 723 (La. 2003)(under Louisiana law expert testimony
that defendant lacked psychology of a child predator not admissible; ―We therefore subscribe to
the views of other appellate courts in states with evidentiary rules similar to those in Louisiana,
that while a defendant may present evidence of his or reputation in the community as a moral
person and for safe and proper treatment of young children, he or she may not present the opinion
of a mental health expert, based either on a ‗profile‘ of a child sex abuser or on the results of
standardized psychological tests, that the defendant is a moral person without deviant sexual
tendencies which might prompt pedophilic behavior.‖ Defendant may, however, offer character
witnesses to testify that defendant has reputation as a moral person who is safe with children.);
Commonwealth v. Federico, 425 Mass. 844, 683 N.E.2d 1035, 1039 (1997)(―with respect to the
accused, the expert may not provide profiles or testify as to the typical attributes or characteristics
of the perpetrators of child abuse‖); State v. Ross, 2010 WL 761323 (Ohio Ct. App. 2010) State
v. Shearer, 101 Or. App. 543, 792 P.2d 1215 (1990)(when defendant offered expert testimony
that he did not match profile of pedophile, prosecutor was properly allowed to impeach expert
with fact that expert gave similar opinion in another case in which defendant subsequently
admitted sexual abuse); Williams v. State, 895 S.W.2d 363 (Tex. Crim. App. 1994)(trial court did
not abuse discretion in excluding expert testimony describing profile of person who would make
harassing telephone calls of sexual nature); Nolte v. State, 854 S.W.2d 304 (Tex. Ct. App.
1993)(proper to admit defense expert testimony that defendant did not fit profile of pedophile);
Dorsett v. State, 761 S.W.2d 432 (Tex. Ct. App. 1988); State v. Gallegos, 220 P.3d 136, 145
(Utah 2009)(―Gallegos argues that the trial court erred in excluding the testimony of Dr. Peter
Byrne, who should have been permitted to testify that ‗based on the psychosexual testing he
administered, it was his expert opinion that [the defendant] was not a ―pedophile‖ and not
attracted to children. Moreover, Gallegos contends that Dr. Byrne's testimony was relevant under
619
136
prosecutor, it is useful to analyze the defendant's offer of expert testimony from the vantage point
of the rules of evidence and from the perspective of the clinical and scientific literature.
[1] Rules of Evidence
Unlike the prosecutor, the defendant in a criminal case is permitted to offer evidence of a
pertinent trait of character to prove innocence.620 In child sexual abuse case, the theory of such
evidence is that because the defendant lacks the personality traits of persons who sexually abuse
children, the defendant probably did not commit the charged offense.621
In State v. Miller,622 the Utah Supreme Court concluded that expert testimony describing ―the
typical psychological profile of individuals who sexually abuse children,‖623 coupled with
testimony from the defendant denying sexual abuse, ―would have been relevant to a pertinent trait
of [defendant's] character, namely, the incongruity of his personality traits with those of
individuals capable of and likely to commit sexual offenses against children.‖624 Thus, the Rules
of Evidence may pave the way for expert testimony that the defendant does not fit a profile.625
rule 401 of the Utah Rules of Evidence to establish a pertinent character trait, that, that Gallegos
was not a pedophile. The State, on the other hand, argues that whether Gallegos is a pedophile is
simply not proper character evidence as contemplated by rule 404(a)(1). More importantly,
because the penile plethysmograph (PPG) that formed the basis of Dr. Byrne's testimony was
‗invalid,‘ the State contends that the test is also irrelevant under rule 401.… [W]e hold that the
trial court erred in determining that the proffered expert testimony was irrelevant. Nevertheless,
we further hold that the error was harmless.‖); State v. Labounty, 716 A.2d 1 (Vt. 1998).
620
Fed. R. Evid. 404(a)(1).
See R.D. v. State, 706 So. 2d 770 (Ala. Ct. Crim. App. 1997)(defendant's proposed expert
testimony that defendant lacked a deviant sexual personality was not proper good character
evidence under Alabama law); Nolte v. State, 854 S.W.2d 304 (Tex. Ct. App. 1993)(proper to
admit defense expert testimony that defendant did not fit profile of pedophile); State v. Gallegos,
220 P.3d 136, 145 (Utah 2009)(―Gallegos argues that the trial court erred in excluding the
testimony of Dr. Peter Byrne, who should have been permitted to testify that ‗based on the
irrelevant. Nevertheless, we further hold that the error was harmless.‖).
621
State v. Hughes, 841 So. 2d 718 (La. 2003)(although a defendant may not offer expert
testimony that he does not fit the profile of a pedophile, defendant may offer character witnesses
to testify that defendant has reputation in community as a moral person who is safe with children
and treats children properly).
622
709 P.2d 350 (Utah 1985).
623
709 P.2d at 352.
624
709 P.2d at 353.
625
State v. Hughes, 841 So. 2d 718 (La. 2003)(under Louisiana law expert testimony that
defendant lacked psychology of a child predator not admissible; ―We therefore subscribe to the
views of other appellate court in states with evidentiary rules similar to those in Louisiana, that
while a defendant may present evidence of his or reputation in the community as a moral person
137
[2] Clinical and Scientific Literature
From the scientific and clinical perspective, the defendant has the same difficulty that
frustrated the prosecutor. There is no profile of a ―typical‖ pedophile or sex offender. Despite this
fact, some mental health professionals are willing to testify that a profile or some variation
thereof exists.626 Most decisions reject such testimony.627 A number of courts hold that sex
offender profiles are a form of scientific evidence that has yet to be proven as reliable.
Despite lack of scientific support, several courts approve defense expert testimony that the
defendant lacks the characteristics of a sex offender.628 In People v. Stoll,629 the California
Supreme Court ruled, ―A criminal defendant charged with committing lewd and lascivious acts
upon a child may introduce a psychologist's opinion testimony, based upon an interview and
professional interpretation of standardized written personality tests, that defendant displays no
signs of ‗deviance‘ or ‗abnormality.‘‖630 The court went on to hold that such testimony is not
and for safe and proper treatment of young children, he or she may not present the opinion of a
mental health expert, based either on a ‗profile‘ of a child sex abuser or on the results of
standardized psychological tests, that the defendant is a moral person without deviant sexual
tendencies which might prompt pedophilic behavior.‖).
626
State v. Gonzalez, 789 N.W.2d 365 (Wis. Ct. App. 2010).
627
See authorities collected in notes ____.
628
State v. Passmore, 355 Mont. 187, 225 P.3d 1229, 1252 (2010)(―we conclude that there is
neither a per se rule requiring admission, nor a per se rule requiring exclusion, of evidence that a
defendant does not possess (or does possess) the character traits of a sex offender.‖); State v.
Gallegos, 220 P.3d 136, 145 (Utah 2009)(―Gallegos argues that the trial court erred in excluding
the testimony of Dr. Peter Byrne, who should have been permitted to testify that ‗based on the
irrelevant. Nevertheless, we further hold that the error was harmless.‖); Nolte v. State, 854
S.W.2d 304 (Tex. Ct. App. 1993)(proper to admit defense expert testimony that defendant did not
fit profile of pedophile); State v. Walters, 269 Wis. 2d 142, 675 N.W.2d 778 (2004)(trial judge
has discretion to admit or exclude such evidence); State v. Davis, 254 Wis. 2d 1, 645 N.W.2d 913
(2002); State v. Richard A.P., 589 N.W.2d 674 (Wis. Ct. App. 1998).
629
49 Cal. 3d 1136, 783 P.2d 698, 265 Cal. Rptr. 111 (1989).
630
783 P.2d at 699. The personality test referred to by the court is the MMPI.
See Doe v. Doe, 644 So. 2d 1199, 1208 (Miss. 1994)(court admitted psychological evidence
offered to prove that accused person did not molest child); State v. Gallegos, 220 P.3d 136, 145
(Utah 2009)(―Gallegos argues that the trial court erred in excluding the testimony of Dr. Peter
Byrne, who should have been permitted to testify that ‗based on the psychosexual testing he
administered, it was his expert opinion that [the defendant] was not a ―pedophile‖ and not
attracted to children. Moreover, Gallegos contends that Dr. Byrne's testimony was relevant under
rule 401 of the Utah Rules of Evidence to establish a pertinent character trait, that, that Gallegos
was not a pedophile. The State, on the other hand, argues that whether Gallegos is a pedophile is
simply not proper character evidence as contemplated by rule 404(a)(1). More importantly,
because the penile plethysmograph (PPG) that formed the basis of Dr. Byrne's testimony was
138
novel scientific evidence subject to Frye. The California Supreme Court's Stoll decision is subject
to criticism on two fronts. First, the professional literature does not support the conclusion that
the results of psychological tests or clinical interviews provide valid data on whether a person
sexually abused a child. Second, a strong argument can be made that before evidence of
psychological tests and interviews is admitted, such evidence should pass muster under Frye or
Daubert.
§ 6.29 TREATMENT FOR SEX OFFENDERS
Sex offenders cannot be treated unless they want to be. Becker writes, ―A sex offender can be
considered amenable to treatment only if he acknowledges that he has committed a sexual
offense, he considers his sexual offending a problem behavior that he wants to stop, and he is
willing to participate fully in treatment.‖631 Most experts believe treatment cannot ―cure‖ sexual
interest in children. The goal of treatment is not to cure deviance, but to help offenders learn to
control deviant impulses.
Offenders use mind games to rationalize their conduct.632 Salter describes the thinking errors
offenders employ to excuse and justify their deviance: ―Sex offenders routinely blame the sexual
offenses on stress, impulse, happenstance, marital problems, alcohol, or even the victim
herself.‖633 Offenders sometimes assert that the child was the seducer. Many offenders distort
reality by persuading themselves that sexual abuse does not harm children, that children ―want‖
or ―need‖ sex with adults, or they were providing ―sex education‖ for the child's benefit.634
Traditional psychotherapy is seldom useful with men who sexually abuse children.635
‗invalid,‘ the State contends that the test is also irrelevant under rule 401.… [W]e hold that the
trial court erred in determining that the proffered expert testimony was irrelevant. Nevertheless,
we further hold that the error was harmless.‖); Nolte v. State, 854 S.W.2d 304 (Tex. Ct. App.
1993)(proper to admit expert testimony that defendant did not fit profile of pedophile).
631
632
W.M. Marshall, Kate Hamilton, & Yolanda Fernandez, Empathy Deficits and Cognitive
Distortions in Child Molesters, 13 Sexual Abuse: A Journal of Research and Treatment 123-130,
129 (2001)(―Child molesters also displayed greater cognitive distortions about sex between adults
and children than did other subjects.‖).
633
634
W.M. Marshall, Kate Hamilton, & Yolanda Fernandez, Empathy Deficits and Cognitive
Distortions in Child Molesters, 13 Sexual Abuse: A Journal of Research and Treatment 123-130,
129 (2001)(―Child molesters also displayed greater cognitive distortions about sex between adults
and children than did other subjects.‖).
See State v. Snell, 314 N.J. Super. 331, 714 A.2d 977 (App. Div. 1998)(defendant repeatedly
committed cunnilingus on victims; ―Defendant claimed that it was his intent to instruct or educate
the minors so that they would not become sexually involved with boys.‖).
635
Judith V. Becker, Offenders: Characteristics and Treatment, 4 The Future of Children 176197 (1994); Judith V. Becker & John A. Hunter, Evaluation of Treatment Outcome for Adult
Perpetrators of Child Sexual Abuse, 19 Criminal Justice and Behavior 74, 81 (1992)(―several
investigators have reported disappointment with the results of psychoanalysis or psychotherapy as
the sole form of treatment in cases of deviant sexual behavior‖).
139
[A] Cognitive Behavioral Therapy
The most effecive sex offender treatment is cognitive-behavioral therapy.636 The focus of
636
Melissa Y. Carpentier, Jane F. Silovsky, & Mark Chaffin, Randomized Trial of Treatment
for Children with Sexual Behavior Problems: Ten-Year Follow-Up, 74 Journal of Consulting and
Clinical Psychology 482-488 (2006)(this is one of the few prospective studies of sex offender
treatment; the authors followed 135 children who were from age 5 to 12 when they demonstrated
various forms of sexual behavior problems; thus, this study is of children, not adult sex offenders;
the children were followed for 10 years following intervention; one group of the children was
treated with cognitive-behavioral therapy (CBT); the other group was treated with play therapy
(PT); over time, the CBT group had a statistically significantly small number of sex offenses than
the children treated with PT (2% for CPT vs. 10% for PT); ―This study is a long-term prospective
follow-up of children with SBP [sexual behavior problems]. The main findings from this study
are twofold. First, the findings support the use of short-term educative CBT for children with SBP
and their caregivers. Second, the findings dispute the assumption that a large proportion of
children with SBP are destined to grow up to become adolescent or adult sex offenders. Children
with SBP who were provided with short-term CBT had future sex offense rates that were both
very low in absolute terms but moreover were indistinguishable from those of a comparison
group of clinic children with common nonsexual behavior problems such as ADAH. After
receiving short-term CBT, children's long-term risk for sex offense arrests or reports was not only
significantly less than children receiving PT but was reduced to baseline, general-clinic
population levels that are so low that they would be difficult to lower further. This finding is at
odds with assumptions that these children pose an unusually high and difficult to manage risk for
becoming future adolescent or adult sex offenders or that they require long-term, intensive, or
highly restrictive treatment to reduce that risk. (p. 486) The highest rate of future sexual offenses
was only 10%, for those children randomized to the PT group. This runs counter to the underlying
philosophy driving some public policy as well as administrative practices of many child welfare
and juvenile justice programs to maintain these youth on registries and require restrictive
placement requirements (such as, routine placement in segregated, specialized, out-of-home
facilities).‖ (p. 487).… In summary, the better outcomes for short-term CPT found in this study,
along with the findings reported by Cohen and Mannarino (1996, 1997) [Cohen, J.A., &
Mannarino, A.P. (1996), A treatment outcome study for sexually abused preschool children:
Initial findings. Journal of the American Academy of Child and Adolescent Psychiatry, 35, 4250]; Deblinger and Heflin (1996) [Deblinger, E., & Heflin, A.H. (1996). Treating sexually abused
children and their nonoffending parents: A cognitive behavioral approach. Thousand Oaks, CA:
Sage], and Silovsky, Niec, Bard, and Hecht (2005) [Silovsky, J.F., Niec, L., Bard, D., & Hecht,
D. (2005). Treatment for preschool children with sexual behavior problems: A pilot study (in
press)] support the use of focused, short-term CBT treatment approaches for children with SBP.‖
(p. 487)); Amanda M. Fanniff & Judith V. Becker, Specialized Assessment and Treatment of
Adolescent Sex Offenders, 11 Aggression and Violent Behavior 265-282 (2006)(―Cognitive
behavioral treatments focus on changing the thoughts, behaviors, and arousal patterns of juvenile
sex offenders. Typically, cognitive behavioral interventions designed for use with this population
include several components of treatment. Some CBT programs include cognitive restructuring,
the hallmark of cognitive behavioral therapy. Cognitive restructuring group sessions are aimed at
confronting rationalizations and permission-giving statements used by the offenders.… Another
common component of CBT approaches to working with juvenile sex offenders is satiation
therapy. Satiation is ‗a therapy that teaches offenders how to use deviant thoughts in a repetitive
manner to the point of satiating themselves with the very stimuli they may have used to become
aroused.‘ … Together, these studies suggest that CBT has some empirical support for use in the
140
treatment is reducing deviant sexual thoughts and preventing relapse.637 Cognitive-behavioral
treatment typically involves some combination of the following elements:
[1] Confronting Denial
Denial is common among sex offenders.638 Overcoming denial and encouraging honesty are
necessary first steps in treatment. When an offender persists in denial, successful treatment is
unlikely.
[2] Correcting Thinking Errors
An important component of offender treatment is correcting the offender's thinking errors or,
treatment of juvenile sex offenders; however, CBT can only be considered a promising approach.
The lack of comparison groups, lack of random assignment and small sample sizes in most
studies create cautious rather than hearty support for the use of CBT.… Psychosocial educational
treatments. … While sex education is useful for educational and social purposes, there is
currently no data showing a connection between sexual knowledge and recidivism. A recent
meta-analysis including studies of adults and juveniles found no connection between sexual
knowledge and sexual recidivism.… These factors preclude making a determination regarding the
effectiveness of [educational] treatment. If psychosocial educational approaches do not reduce
recidivism, perhaps social skills training can be excluded from those treatment programs that
have limited funding.… Summary. … Research on the treatment of juvenile sex offenders has
yielded studies that indicate treatment is effective for this population.… Juvenile sex offenders
appear to have low rates of sexual recidivism, therefore finding a low rate of sexual recidivism
when there is no control group does not demonstrate that the treatment is effective.… While the
literature of the treatment of juvenile sex offenders is quite encouraging, there is actually little
evidence suggesting the necessity of specialized treatment.‖); Laura G. Kirsch & Judith V.
Becker, Sexual Offending: Theory of Problem, Theory of Change, and Implications for
Treatment Effectiveness, 11 Aggression and Violent Behavior 208-224, at 211 (2006)(―Overall, it
seems apparent that a multi-component cognitive-behavioral approach is currently the best
available treatment for sex offenders; however, given that between 10% and 30% of treated
offenders sexually reoffend within 5 years of their release, there is clearly room for
improvement.‖); Laura G. Kirsch, Amanda M. Fanniff & Judith V. Becker,Treatment Adolescent
and Adult Sex Offenders. In John E.B. Myers (Ed.), The APSAC Handbook on Child
Maltreatment 289-305, at 290 (3d ed. 2011)(Sage)(―Treatment programs for adult sex offenders
typically employ multicomponent cognitive behavioral therapy (CBT) within a relapse prevention
(RP) framework.‖); Tania Simone Stirpe, Robin J. Wilson, & Carmen Long, Goal Attainment
Scaling with Sexual Offenders: A Measure of Clinical Impact at Posttreatment and at Community
Follow-Up, 13 Sexual Abuse: A Journal of Research and Treatment 65-77 (2001)(―The results of
the present study support the notion that both higher and lower risk sexual offenders can benefit
from cognitive-behavioral interventions.‖).
637
Laura G. Kirsch, Amanda M. Fanniff & Judith V. Becker,Treatment Adolescent and Adult
Sex Offenders. In John E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 289-305,
at 290 (3d ed. 2011)(Sage)(―CBT is a psychotherapeutic approach that incorporates behavioral
techniques with cognitive interventions to analyze and challenge distorted thinking in order to
promote behavioral, thinking, and emotional change.‖).
638
at 290 (3d ed. 2011)(Sage).
141
as they are often called, cognitive distortions.639
[3] Deviant Sexual Arousal
Lowering deviant sexual arousal is a component of treatment.640 Kirsch, Fanniff, and Becker
write, ―Deviant sexual arousal is targeted using behavioral techniques that generally involve
paring of aversive outcomes with sexually deviant fantasies in order to extinguish the conditioned
association between sexual arousal and deviant sexual fantasy.‖641
[4] Increasing the Offender's Ability to Empathize with
Victims
Lack of empathy for the victim is common among child molesters.642 As with thinking errors,
lack of empathy facilitates sexual abuse by insulating the offender from the consequences of his
behavior. Thus, insisting that offenders come to terms with the harm they cause—to have
empathy with the victim—is a crucial step in treatment. Increased empathy with the victim
enhances the offender's ability to control the urge to engage in deviant sexual behavior.
[5] Risk Factors and Antecedents to Sexual Abuse
Most sex offenses are not spur of the moment events. On the contrary, most offenses are
planned. It is possible—if the offender cooperates—to identify the sequence of events that
triggers the cycle of offending. Once the offender's risk factors are identified, the therapist helps
the offender detect early warnings signs leading to deviance, and to interrupt the deviant cycle
before a new offense occurs. This aspect of treatment is called relapse prevention.643
[6] Increasing Social Competence
Some sex offenders have deficits in basic social skills. Offenders may be poor problem
639
at 290 (3d ed. 2011)(Sage)(―CBT is a psychotherapeutic approach that incorporates behavioral
techniques with cognitive interventions to analyze and challenge distorted thinking in order to
promote behavioral, thinking, and emotional change.‖).
640
at 290 (3d ed. 2011)(Sage).
641
at 290 (3d ed. 2011)(Sage).
642
Sex Offenders. In John E.B. Myers (Ed.), The APSAC Handbook on Child Maltreatment 289-305
(3d ed. 2011)(Sage).
643
at 291 (3d ed. 2011)(Sage)(―RP for sex offenders focuses on helping the offender analyze the
chain of events preceding his prior offenses in order to identify the circumstances that lead to
offending. Offenders are then provided with the skills needed to interrupt the chain and cope with
high-risk situations that increase the probability of reoffense.‖).
142
solvers, and may have poor anger and stress management skills. Ofender may lack skills in
developing healthy adult relationships. One goal of treatment is to improve the offender's ability
to deal effectively with adult social situations.644
[7] Role of the Law in Offender Treatment
Professionals who treat sex offenders recognize that the courts play an important role in
getting offenders into treatment and keeping them there. The threat of incarceration provides the
incentive many offenders need to work at therapy.
[B] Emerging Treatment Models
While cognitive behavioral therapy remains the mainstay of offender treatment, new
approachs to treatment arise.645 Kirsch, Fanniff, and Becker write, ―[S]ex offender treatment
programs use a [cognitive behavioral therapy/relapse prevention] treatment framework. Recently,
however, supplementary approaches have emerged. . . . The Good Lives Model is a humanistic
approach to the treatment of sexual offenders that stresses the importance of constructing a
balanced, porsocial personal identity. This goal is achieved through the development of internal
capabilities (i.e., skills, attitudes, and beliefs) and external conditions (i.e., support systems) in
order to meet the offender‘s needs in adaptive, prosocial ways.‖646
[C] Does Treatment Work?
Are sex offenders who have been treated less likely to reoffend than untreated offenders?
Research on the effectiveness of treatment yields mixed results, with some researchers reporting
good results and others expressing doubt.647 Kirsch, Fanniff, and, Becker write, ―Despite the
644
(3d ed. 2011)(Sage).
645
(3d ed. 2011)(Sage).
646
at 291 (3d ed. 2011)(Sage).
647
Kathryn England Aytes, Sam S. Olsen, Todd Zakrajsek, Paul Murray, & Randall Ireson,
Cognitive/Behavioral Treatment for Sexual Offenders: An Examination of Recidivism, 13 Sexual
Abuse: A Journal of Research and Treatment 223-231 (2001)(sex offenders who remained in
treatment at least a year had a significantly lower rate of recidivism than others); Melissa Y.
Carpentier, Jane F. Silovsky, & Mark Chaffin, Randomized Trial of Treatment for Children With
Sexual Behavior Problems: Ten-Year Follow-Up, 74 Journal of Consulting and Clinical
Psychology 482-488 (2006)(this is one of the few prospective studies of sex offender treatment;
the authors followed 135 children who were from age 5 to 12 when they demonstrated various
forms of sexual behavior problems; thus, this study is of children, not adult sex offenders; the
children were followed for 10 years following intervention; one group of the children was treated
with cognitive-behavioral therapy (CBT); the other group was treated with play therapy (PT);
over time, the CBT group had a statistically significantly smaller number of sex offenses than the
children treated with PT (2% for CPT vs. 10% for PT); ―This study is a long-term prospective
follow-up of children with SBP [sexual behavior problems]. The main findings from this study
are twofold. First, the findings support the use of short-term educative CBT for children with SBP
143
and their caregivers. Second, the findings dispute the assumption that a large proportion of
children with SBP are destined to grow up to become adolescent or adult sex offenders. Children
with SBP who were provided with short-term CBT had future sex offense rates that were both
very low in absolute terms but moreover were indistinguishable from those of a comparison
group of clinic children with common nonsexual behavior problems such as ADAH. After
receiving short-term CBT, children's long-term risk for sex offense arrests or reports was not only
significantly less than children receiving PT but was reduced to baseline, general-clinic
population levels that are so low that they would be difficult to lower further. This finding is at
odds with assumptions that these children pose an unusually high and difficult to manage risk for
becoming future adolescent or adult sex offenders or that they require long-term, intensive, or
highly restrictive treatment to reduce that risk. (p. 486) The highest rate of future sexual offenses
was only 10%, for those children randomized to the PT group. This runs counter to the underlying
philosophy driving some public policy as well as administrative practices of many child welfare
and juvenile justice programs to maintain these youth on registries and require restrictive
placement requirements (such as, routine placement in segregated, specialized, out-of-home
facilities).‖ (p. 487).… In summary, the better outcomes for short-term CPT found in this study,
along with the findings reported by Cohen and Mannarino (1996, 1997) [Cohen, J.A., &
Mannarino, A.P. (1996), A treatment outcome study for sexually abused preschool children:
Initial findings. Journal of the American Academy of Child and Adolescent Psychiatry, 35, 4250]; Deblinger and Heflin (1996) [Deblinger, E., & Heflin, A.H. (1996). Treating sexually abused
children and their nonoffending parents: A cognitive behavioral approach. Thousand Oaks, CA:
Sage], and Silovsky, Niec, Bard, and Hecht (2005) [Silovsky, J.F., Niec, L., Bard, D., & Hecht,
D. (2005). Treatment for preschool children with sexual behavior problems: A pilot study. (in
press)] support the use of focused, short-term CBT treatment approaches for children with SBP.‖
(p. 487)); R. Karl Hanson, Arthur Gordon, Andrew J.R. Harris, Janice K. Marques, William
Murphy, Vernon L. Quinsey, & Michael C. Seto, First Report of the Collaborative Outcome Data
Project on the Effectiveness of Psychological Treatment for Sex Offenders, 14 Sexual Abuse: A
Journal of Research and Treatment 169-194 (2002)(this meta-analysis suggests there is reason to
be optimistic); Laura G. Kirsch, Amanda M. Fanniff & Judith V. Becker,Treatment Adolescent
and Adult Sex Offenders. In John E.B. Myers (Ed.), The APSAC Handbook on Child
Maltreatment 289-305, at 293 (3d ed. 2011)(Sage)(―Although research suggests that CBT/RP can
be effective, there is also some evidence to the contrary.‖); Richard I. Lanyon, Psychological
Assessment Procedures in Sex Offending, 32 Professional Psychology: Research and Practice
253-260, at 255 (2001)(―Despite assertions that evidence of successful treatment for sex
offenders is minimal or nonexistent, there is abundant evidence that some sexually deviant
persons are treatable, at least to the extent of the available follow-up studies.‖); Elizabeth J.
Letourneau & Kevin S. Armstrong, Recidivism Rates for Registered and Non-Registered Juvenile
Sexual Offenders (2008)(recidivism rates for treated youth average 8% to 10%; ―The present
study failed to support the effectiveness of registration or notification policies in reducing sexual
or other person offense recidivism rates among juvenile sexual offenders.‖); Elizabeth J.
Letourneau, Jason E. Chapman & Sonja K. Schoenwald, Treatment Outcome and Criminal
Offending by Youth with Sexual Behavior Problems, 13 Child Maltreatment 133-144 (2008);
Elizabeth J. Letourneau & Michael H. Miner, Juvenile Sex Offenders: A Case Against the Legal
and Clinical Status Quo, 17 Sexual Abuse: A Journal of Research and Treatment 293-308, 304
(2005)(―Although juvenile sex offender treatment programs have proliferated during the past 25
years, only three controlled research studies have examined the efficacy of the prevailing
cognitive-behavioral treatment approaches with juvenile sex offenders. None of these studies
used random assignment to groups, and only one provided substantial support for the prevailing
treatment model.… Another area of research has focused on the effectiveness of home-based
treatment for juvenile sex offenders. Two small, randomized clinical trials support a home-based
144
widespread implementation of sex offender treatment programs, however, research demonstrating
treatment effectiveness—reduced recidivism—is not yet conclusive. . . . Large-scale metaanalyses of treatment outcome research generally support the effectiveness of sex offender
treatment, particularly CBT-based approaches.‖648
A considerable percentage of men who enter sex offender treatment drop out.649 The greater
the external pressure on the offender to stay in therapy, the more likely he is to complete
treatment. The most effective external pressure is often a judge's gavel. Offenders with a
diagnosis of antisocial personality disorder are at high risk of dropping out. Men who are
indiscriminate in their choice of victims appear to be at greater risk of drop out. Rapists are poor
candidates for treatment.
For sadists, the primary goal is causing suffering. It is hardly surprising that sadists are poor
candidates for treatment. Fortunately, only two to five percent of men who sexually abuse
children or adults are sadists who derive pleasure from inflicting pain.650
Treatment is fruitless for psychopaths. Indeed, there is evidence that for some psychopaths,
participation in group therapy increases recidivism.651 Seto and Barbaree write, ―Participating in
treatment model that specifically targets several of the systems in which youth are embedded.‖);
William D. Murphy, Management and Treatment of the Adult Sexual Offender. In B.J. Cling
(Ed.), Sexualized Violence Against Women and Children pp. 217-244, at 231 (2004)(New York:
Guilford Press)(―There is a lack of consensus within the sexual offender field regarding whether
there is adequate scientific evidence that treatment is effective.…‖); Michael C. Seto & Howard
E. Barbaree, Psychopathy, Treatment Behavior, and Sex Offender Recidivism, 14 Journal of
Interpersonal Violence 1235-1248 (1999)(in this study, cooperation with treatment was not
associated with lower recidivism).
648
at 292 (3d ed. 2011)(Sage).
649
Judith V. Becker & John A. Hunter, Evaluation of Treatment Outcome for Adult
Perpetrators of Child Sexual Abuse, 19 Criminal Justice & Behavior 74 (1992).
650
651
Mark E. Olver & Stephen C.P. Wong, Psychopathy, Sexual Deviance, and Recidivism
Among Sex Offenders, 18 Sexual Abuse: A Journal of Research and Treatment 65-82, at 65-66
(2006)(―Psychopathy is a serious personality disorder with devastating social consequences
marked by a constellation of affective, interpersonal, and behavioral characteristics. Affectively,
psychopathic offenders are emotionally shallow, selfish, callous, and lack remorse.
Interpersonally, psychopathic offenders are conning, deceitful and manipulative, superficial,
voluble and socially facile, and incapable of forming stable relational ties. Behaviorally,
psychopathic offenders are irresponsible, impulsive, exploitive, and lacking in realistic long-term
goals. The primary instrument for assessing psychopathy, the Psychopathy Checklist-Revised,
has been found to predict violent and nonviolent recidivism, violation of conditional release, and
institutional misconduct. Base rates of psychopathy vary among different sex offender groups and
studies.… In the extant literature, some studies have found significant relationships between
psychopathy and sexual recidivism whereas others have not.‖); Tiffany Walsh & Zach Walsh,
The Evidentiary Introduction of Psychopathy Checklist-Revised Assesses Psychopathy in U.S.
Courts: Extent and Appropriateness, 30 Law and Human Behavior 493-507 (2006)(―Our review
indicates that the courts have generally spoken in favor of admitting PCL-R assessed psychopathy
evidence under both the Daubert and Frye admissibility standards. Indeed, in light of the
widespread recognition accorded the PCL-R as an empirically derived instrument, the measure
145
sex offender treatment may increase risk for sexual recidivism, perhaps by exposure to sexually
deviant material or by learning about others' modi operandi.‖652 Hart and Hare reviewed the
literature on treatment of psychopaths and wrote, ―Group therapy and insight-oriented programs
help psychopaths to develop better ways of manipulating, deceiving, and using people but do
little to help them to understand themselves.‖653
Recidivism is the rate of reoffending.654 Becker notes, ―It is extremely difficult to measure
appears to meet the acceptance standard of Frye‖ p. 504. ―The PCL-R has been established to be
a robust predictor of violent recidivism among European American adult males. However, an
equivalent body of research has yet to accrue relating PCL-R to violent recidivism in female,
African American, and adolescent offenders.‖ p. 505. ―Similarly, although the Psychopathy
Checklist: Youth Version (PCL:YV), has been developed to measure psychopathic traits in
adolescents, the assessment of psychopathy in this population has yet to accrue a comparable
level of empirical support to the PCL-R, and the application of the psychopathy construct to
juveniles remains controversial.‖ p. 505. ―The PCL-R is not a valid scientific measure of
individual guilt for a specific behavior.‖ p. 506).
652
Michael C. Seto & Hoard E. Barbaree, Psychopathy, Treatment Behavior, and Sex
Offender Recidivism, 14 Journal of Interpersonal Violence 1235-1248, at 1244 (1999).
653
S.D. Hart & R.D. Hare, Psychopathy: Assessment and Association with Criminal Conduct.
In D.M. Stoff, J. Breiling, & J.D. Maser (Eds.), Handbook of Antisocial Behavior 22-35, at 31
(1997)(New York: John Wiley).
654
Michael F. Caldwell, Sexual Offense Adjudication and Sexual Recidivism among Juvenile
Offenders, 19 Sexual Abuse: A Journal of Research and Treatment 107-113 (2007)(―The
evidence to date has not demonstrated that juvenile sexual offenders are apt to specialize in
sexual offending.‖ p. 108. ―Adjudication for a sexual offense did not identify a subgroup of
delinquents that were significantly more apt to be charged with a new sexually violent act in the 5
years after release from custody.‖ p. 110. ―The juvenile sex offenders in this study were not
significantly more likely to be charged with a future sexual offense during the follow-up period.
Although the sex offenders continued to be charged with other offenses at high rates, they were
less likely to be charged with general or felony offenses than the non-sex offending comparison
group.… Thus, in this study, a sexual offense adjudication did not identify a distinct subgroup of
juvenile offenders that were more likely to commit future crimes in general, more likely to
commit sexually violent crimes, or more likely to commit sexual homicides.‖ p. 111. ―These
results are consistent with previous findings that the majority of juvenile sexual offenders do not
sexually offend as adults, and are much more apt to commit non-sexual offenses. These results
did not find that juvenile sex offenders tended to specialize in their sexual offending.‖ p. 112.
―This rate of sexual recidivism suggests that there is likely to be little benefit to notifying the
community about the prior history of juvenile sexual offense adjudication for the vast majority of
these juvenile sex offenders. Although the benefits of restrictive public policies targeting juvenile
sex offenders may be limited, there is reason to be concerned that the potential harm of applying a
label to a juvenile may be substantial and long-lasting. When applied to juveniles, sex offender
registration, notification, and residency restriction statutes, and sexually violent person
commitment laws, are intended to address the very real and serious problem of sexual violence in
society by targeting a designated high risk subgroup. However, the bulk of community sexual
violence involves individuals that are not so designated, and identified juvenile sex offenders are
unlikely to persist in sexual offending, or present a greater risk of other serious offending. The
results described here suggest that restrictive public policies that target juvenile sex offenders are
unlikely to substantially benefit community safety.‖ pp. 112-113.); Elizabeth J. Letourneau &
Michael H. Miner, Juvenile Sex Offenders: A Case Against the Legal and Clinical Status Quo, 17
Sexual Abuse: A Journal of Research and Treatment 293-308, 300 (2005) (―the evidence suggests
146
that sexual recidivism rates of juvenile sex offenders are low—both statistically and as compared
with nonsexual recidivism rates. For example, of 25 studies that reported sexual recidivism rates
for juvenile sex offenders (wherein recidivism was defined as either new arrests or new
convictions), the mean rate of recidivism was 9%. These same youth were more than six times as
likely to be rearrested for nonsexual crimes. By comparison, a review of 61 studies of adult sex
offenders reports a mean sexual recidivism rate of 13.4% (49% higher than for juveniles) and a
mean general recidivism rate of 36.3%. Thus, juveniles appear to be less likely to reoffend
sexually and more likely to reoffend with nonsexual offenses than are adults.… This is not to say
that high-risk juvenile sex offenders do not exist.‖); Holly A. Miller, Amy E. Amenta, & Mary
Alice Conroy, Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for
Professionals, and Research Directions, 29 Law and Human Behavior 29-54 (2005)(―Research
has indicated significant differences between types of sexual offenders, including rates of
recidivism. For example, incest offenders recidivate at lower rates than extrafamilial child
molesters who target victims of the opposite sex who, in turn, recidivate at lower rates than
extrafamilial child molesters who target victims of the same sex.‖ p. 44); Gregory A. Parks &
David E. Bard, Risk Factors for Adolescent Sex Offender Recidivism: Evaluation of Predictive
Factors and Comparison of Three Groups Based Upon Victim Type, 18 Sexual Abuse: A Journal
of Research and Treatment 319-342, at 337 (2006)(―Results of this study confirm a relatively low
rate of sexual recidivism among juveniles who have not been sampled in this geographic region.
The public perception that sex offenders are untreatable often extends to adolescents and
continues to be perpetuated in the absence of empirical support. A punitive approach to juvenile
sex offender treatment, often accompanied by public humiliation, may only serve to alienate such
adolescents further and hinder the normal social development that might otherwise contribute to
the prevention of additional victims. The rate of sexual recidivism identified in this study is
consistent with previous literature and contributes to the accumulation of empirical evidence that
the majority of adolescents who sexually offend do not become adult sexual offenders.‖); Robert
Alan Prentky & Austin F.S. Lee, Effect of Age-at-Release on Long Term Sexual Re-offense
Rates in Civilly Committed Sexual Offenders, 19 Sexual Abuse: A Journal of Research and
Treatment 43-59 (2007)(25 year follow-up study of 136 rapists and 115 child molesters;
recidivism among rapists declined with age; with child molesters, however, recidivism went up in
middle age; ―Results from this study support prior findings of a risk mitigating effect at time of
release for rapists, with failure rates dropping linearly as a function of age from 42.8% at age 20
to 30.5% at age 30, 21.1% at age 40, 14.3% at age 50, and 9.5% at age 60. Failure rates for child
molesters presented a more complex picture. Among the child molesters, the failure rate at age 20
was 16.3%, increasing sharply to 42.6% at age 30, increasing again to 59% at age 40, dropping
slightly to 52.3% at age 50, and declining significantly at 27.2% at age 60.‖ p. 55. ―The age-crime
curve for child molesters in the present study, however, suggested that the highest risk period is
‗middle‘ age, roughly from the late twenties to the mid-forties followed by a decline thereafter.‖
p. 56. Overall, it would seem clear, based on these findings, that the age-crime persistence
patterns for rapists and child molesters are quite different and that these differences should be
taken into account in risk analysis. Rape is fundamentally predatory antisocial behavior that is
subject to the same type of age-related decline observed with non-sexual antisocial behavior.
―Moreover, persistence among rapists occurs within a fairly narrow window, roughly five years.
Child molestation, on-the-other-hand, is characterized by anomalous sexual preference, or more
colloquially, a form of sexual deviance, with persistence patterns that reflect greater longevity.‖
p. 57); Lorraine R. Reitzel & Joyce L. Carbonell, The Effectiveness of Sexual Offender
Treatment for Juveniles as Measured by Recidivism: A Meta-Analysis, 18 Sexual Abuse: A
Journal of Research and Treatment 401-421, at 413 (2006)(―This study contributes to our
understanding of [juvenile sexual offenders] JSO recidivism by providing additional evidence
that rates of sexual recidivism in JSOs are lower than rates of non-sexual recidivism in this
147
recidivism.‖655 Although all sex offenders are at risk of reoffending, so are nonsexual
criminals.656 It is not clear that child molesters as a group reoffend at higher rates than other
criminals.657 McGrath reports that among untreated sex offenders, incest offenders have the
lowest recidivism rate.658 In a long-term study of the effectiveness of cognitive-behavioral
therapy, Marshall and Barbaree reported eight percent of treated incest offenders reoffended,
whereas twenty-one percent of untreated incest offenders reoffended.659 Recidivism appears to be
higher among nonincest offenders.660 Among extrafamilial offenders, men who molest boys have
higher recidivism rates than men who molest girls.661 Men who target girls and boys of various
ages recidivate at high rates.662 Maletsky reports that men with multiple paraphilias are at higher
risk of reoffending.663 A prior criminal record is correlated with high recidivism.664 Prentky and
colleagues write, ―Those child molesters who have an alcohol abuse history, have never been
married, or who either have a history of criminality or have been diagnosed as sociopathic or
population. The overall sexual recidivism rate of the total sample was 12.53% (unweighted
average), as compared to rates of non-sexual recidivism, which ranged from 20.40%
(other/unspecified, non-sexual recidivism) to 28.51% (non-violent, non-sexual recidivism).
Sexual recidivism rates for juveniles in this study appear to be slightly less than those for adult
offenders in meta-analyses with comparative follow-up periods. Results are also consistent with
summative research on juvenile and adult samples of treated offenders, indicating a lower
recidivism rate in treated juveniles versus treated adult offenders.… In the present study, there
was a statistically significant difference between sexual recidivism rates for those juveniles
receiving sexual offender treatment (7.37% recidivism, unweighted average) versus those
receiving no treatment (18.93% recidivism, unweighted average). These results echoed previous
research finding a difference in recidivism rates between treated and untreated offenders in adult
samples.‖).
655
656
Karl R. Hanson, Heather Scott, & Richard A. Steffy, A Comparison of Child Molesters
and Nonsexual Criminals; Risk Predictors of Long-Term Recidivism, 32 Journal of Research in
Crime & Delinquency 325-337 (1995).
657
Karl R. Hanson, Heather Scott, & Richard A. Steffy, A Comparison of Child Molesters
and Nonsexual Criminals; Risk Predictors of Long-Term Recidivism, 32 Journal of Research in
Crime & Delinquency 325-337 (1995).
658
Robert J. McGrath, Sex-Offender Risk Assessment and Disposition Planning: A Review
of Empirical and Clinical Findings, 35 International Journal of Offender Therapy & Comparative
Criminology 328-350 (1991).
659
W.L. Marshall & H.E. Barbaree, The Long-Term Evaluation of a Behavioral Treatment
Program for Child Molesters, 26 Behavior Research & Therapy 499-511 (1988).
660
W.L. Marshall & H.E. Barbaree, The Long-Term Evaluation of a Behavioral Treatment
Program for Child Molesters, 26 Behavior Research & Therapy 499-511 (1988).
661
Robert J. McGrath, Sex-Offender Risk Assessment and Disposition Planning: A Review
of Empirical and Clinical Findings, 35 International Journal of Offender Therapy and
Comparative Criminology 328-350 (1991).
662
Gene G. Abel, Marty Mittelman, Judith Becker, Jerry Rathner, & Joanne-L. Rouleau,
Predicting Child Molesters' Response to Treatment, 528 Annals of the New York Academy of
Sciences 223-234 (1988).
663
Barry Maletsky, Treating the Sexual Offender (1991)(Newbury Park, Cal.: Sage).
664
W.L. Marshall, Robin Jones, Tony Ward, Peter Johnson, & H.E. Barbaree, Treatment
Outcome with Sex Offenders, 11 Clinical Psychology Review 465-485 (1991).
148
psychopathic are at higher risk to reoffend.‖665 The Association for the Treatment of Sexual
Abusers wrote, ―Because sex offenders are not a homogeneous group, generalizing a single reoffense rate is misleading and inaccurate. Rather, it is more accurate to examine re-offense
patterns for the different categories of sex offenders. At present [1996], the research literature
indicates that re-offense rates for untreated sex offenders, who choose victims from within the
family unit, range from four to ten percent. Re-offense rates for untreated sex offenders, who
primarily target children, ran from ten to forty percent and rates for untreated sex offenders who
target adult women range from seven to thirty-five percent.‖666
[D] Adolescent Sex Offenders
Adolescents commit a significant number of sex offenses.667 Some teenagers who act out
sexually go on to commit sex crimes as adults. Fortunately, most do not. Kirsch, Fannell, and
Becker write, ―It is important to note that despite early concerns that many juvenile offenders
would become adult sex offenders, the majority of juvenile sex offenders are not arrested as an
adult for a sexual offense, even when followed for 5 to 9 years.‖668
The dominant treatment model for adolescents—as for adults—is cognitive behavioral
therapy coupled with relapse prevention.669 Kirsch, Fannell, and Becker write, ―Existing research
suggests that treatment of juveniles is effective.‖670
§ 6.30 INVOLUNTARY CIVIL COMMITMENT OF
DANGEROUS SEXUAL OFFENDERS
Some dangerous sex offenders are not safe at large. Yet, when their prison term expires, they
are entitled to release. Most such offenders cannot be committed for traditional psychiatric
treatment because they do not have the mental illness required for involuntary civil commitment.
In the middle of the twentieth century, a number of states had laws that permitted involuntary
civil commitment of dangerous sex offenders. In the 1970s and 1980s, these laws fell into disuse.
In the 1990s, however, states resurrected laws allowing involuntary civil commitment of sexually
violent predators.671
665
Robert A. Prentky, Raymond A. Knight, & Austin F.S. Lee, Risk Factors Associated with
Recidivism Among Extrafamilial Child Molesters, 65 Journal of Consulting and Clinical
Psychology 141-149, at 142 (1997).
666
Treatment and Intervention with Abusers (1996) (available online at www.atsa.com).
667
(3d ed. 2011)(Sage).
668
(3d ed. 2011)(Sage).
669
at 295-296 (3d ed. 2011)(Sage).
670
at 297 (3d ed. 2011)(Sage).
671
John E.B. Myers, Child Protection in America: Past, Present and Future (2006)(Oxford
University Press).
149
In 1997, the U.S. Supreme Court upheld the constitutionality of Kansas' sexual predator
commitment law.672 State supreme courts have upheld similar laws.673 In 2002, the U.S. Supreme
Court revisited the Kansas law and ruled that in commitment proceedings, substantive due
process requires the state to prove that the sexually dangerous individual has some degree of
inability to control himself.674 The Court recognized, ―[I]n cases where lack of control is at issue,
‗inability to control behavior; will not be demonstrable with mathematical precision. It is enough
to say that there must be proof of serious difficulty in controlling behavior.‖675
Lower courts are following the Supreme Court's direction.676 The Illinois Supreme Court
672
521 U.S. 346 (1997).
In re Leon G., 204 Ariz. 15, 59 P.3d 779 (2002); Hubbart v. Superior Court, 19 Cal. 4th
1138, 969 P.2d 584, 81 Cal. Rptr. 2d 492 (1999); Westerside v. State, 831 So. 2d 93 (Fla. 2002);
Thomas v. State, 74 S.W.3d 789 (Mo. 2002).
674
Kansas v. Crane, 534 U.S. 407 (2002)(absolute inability to control behavior is not
required; ―Insistence upon absolute lack of control would risk barring the civil commitment of
highly dangerous persons suffering from severe mental abnormalities. We do not agree with the
State, however, insofar as it seeks to claim that the Constitution permits commitment of the type
of dangerous sexual offender considered in Hendricks without any lack-of-control
determination.… In recognizing that fact, we did not give to the phrase ‗lack of control‘ a
particularly narrow or technical meaning. And we recognize that in cases where lack of control is
at issue, ‗inability to control behavior‘ will not be demonstrable with mathematical precision. It is
enough to say that there must be proof of serious difficulty in controlling behavior.‖).
See Holly A. Miller, Amy E. Amenta, & Mary Alice Conroy, Sexually Violent Predator
Evaluations: Empirical Evidence, Strategies for Professionals, and Research Directions, 29 Law
and Human Behavior 29-54, at 47 (2005)(―Degree of behavioral control is perhaps the element of
most SVP [sexually violent predator] standards that is farthest from the realm of competence of
mental health professionals. Volitional control is not scientifically demonstrable, yet easily
implied by the linguistically careless. Phrases such as ‗leads to …,‘ ‗results in …,‘ ‗manifests as
…,‘ or ‗predisposes to …,‘ suggest that some identified phenomenon is in some way responsible
for the individual‘s failure to control sexual behaviors. However, to suggest the existence of
something beyond signs and symptoms, manifested as behavior, is simply to reify a construct.
There is no scientific data identifying something that is causing loss of control, let alone a loss
measurable in degrees of difficulty. While an evaluator can report that an individual repeatedly
fails to exercise control, even in the face of severe negative consequences, it is best left to the trier
of fact to determine whether this is a case of ‗cannot‘ or ‗will not.‘‖ p. 47).
675
Kansas v. Crane, 534 U.S. 407, 413 (2002).
See Peter Pfaffenroth (Note), The Need for Coherence: States' Civil Commitment of Sex
Offenders in the Wake of Kansas v. Crane, 55 Stanford Law Review 2229, at 2248-2249
(2003)(―Most states have not read Crane to require any additional jury finding that the sex
offender lacks a degree of volitional control. Instead, they have taken advantage of the majority
opinion's ambiguity to change only minimally—or not at all—their commitment procedures.…
The trend so far by state appellate courts has been to behave as if Crane had never been decided.
Most state courts have maintained that their civil commitment laws already commit only those
who lack significant volitional control.…‖).
676
McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010); In Detention of Stephen H., 206 Ariz.
290, 77 P.3d 465 (Ct. App. 2003)(state carried its burden of proof to establish need for
commitment); Thomas v. State, 74 S.W.3d 789 (Mo. 2002); In re the Commitment of W.Z., 173
N.J. 109, 801 A.2d 205, 217 (2002)(the lack of control standard is met when the person is ―found,
by clear and convincing evidence, to have serious difficulty in controlling his or her harmful
behavior such that it is highly likely that the individual will not control his or her sexually violent
673
150
noted, ―The lack of control does not have to be a total or complete lack of control.‖677 Other
courts agree.678 Several state supreme courts have ruled that it is not necessary to provide separate
jury instructions on lack of control, or for the jury to make a separate ―control‖ finding.679 In
Thomas v. State,680 the Missouri Supreme Court crafted a jury instruction on point: ―‗Mental
abnormality‘ means a congenital or acquired condition affecting the emotional or volitional
capacity that predisposes the person to commit sexually violent offenses in a degree that causes
the individual serious difficulty in controlling his behavior.‖
Commitment proceedings are civil,681 and the Confrontation Clause of the Sixth Amendment
poses no obstacle to admission of hearsay.682 Hearsay that meets the requirements of an exception
is admissible. Florida's commitment statute provides that hearsay is admissible unless the court
finds the hearsay is unreliable.683 Clearly, the offender's admissions are admissible against him.684
A mental health professional participating in commitment proceedings may rely on hearsay to
formulate an opinion about the offender's dangerousness.685
In sexual predator commitment proceedings, the principal issue is the likelihood the offender
behavior and will‖ re-offend); In re the Care and Treatment of Kennedy, 353 S.C. 394, 578
S.E.2d 27 (2003)(there is no requirement of a total lack of self-control; trial court must determine
whether individual has serious difficulty controlling deviant behavior); In re the Treatment and
Care of Luckabaugh, 351 S.C. 122, 568 S.E.2d 338, 348 (2002)(―A court must determine the
individual lacks control while looking at the totality of the evidence.‖); In re Detention of
Thorell, 149 Wash. 2d 724, 72 P.3d 708 (2003).
677
In re Detention of Varner, 207 Ill. 2d 425, 800 N.E.2d 794, 798 (2003).
678
State v. Gibson, 187 Or. App. 207, 66 P.3d 560 (2003).
679
People v. Williams, 31 Cal. 4th 757, 74 P.3d 779, 3 Cal. Rptr. 3d 684 (2003); In re
Detention of Varner, 207 Ill. 2d 425, 800 N.E.2d 794, 799 (2003); In re Detention of Thorell, 149
Wash. 2d 724, 72 P.3d 708, 715 (2003)(―We conclude that Crane requires a determination that a
potential SVP has serious difficulty controlling dangerous, sexually predatory behavior, but does
not require a separate finding to that effect.‖).
680
74 S.W.3d 789 (Mo. 2002).
681
Kansas v. Crane, 534 U.S. 407, 413 (2002); In re Commitment of Conn, 207 Ariz. 257, 85
P.3d 474, 476 (2004)(―As the United States Supreme Court and Arizona's appellate courts have
repeatedly held, commitment proceedings under the SVP Act are strictly civil in nature.‖).
682
In re Commitment of Cartwright, 870 So. 2d 152 (Fla. Ct. App. 2004).
683
Florida Statutes §394.9155(5).
684
In re Commitment of Conn, 207 Ariz. 257, 85 P.3d 474 (2004)(while awaiting trial on
sexual assault charge, individual ―cleared up‖ several previously unsolved rapes for a detective
who promised he would not be prosecuted for the unsolved rapes; in the commitment proceeding,
it was proper for the examining mental health professional to consider the individual's admissions
to the detective of the unsolved cases in forming the professional's opinion that the individual was
dangerous).
685
In re Care and Treatment of H. Whitnell, 129 S.W.3d 409, 416 (Mo. Ct. App. 2004)(―In
recognition of the generally accepted principle that an expert acquires his knowledge and
expertise from a number of sources, some of which may include inadmissible hearsay, an expert
can rely on hearsay information in forming an opinion.‖); In re Civil Commitment of E.S.T., 371
N.J. Super. 562, 854 A.2d 936, 942 (A.D. 2004)(―we conclude, for the reasons which follow, that
E.S.T.'s commitment based on expert medical testimony that was to a large measure based on
hearsay in the form of opinions of other experts who did not testify, was error, and that such error
was ‗clearly capable of producing an unjust result.‘‖); In re Civil Commitment of J.H.M., 367
N.J. Super. 599, 845 A.2d 139 (2003); Boyce v. Commonwealth, 279 Va. 644, 691 S.E.2d 782
(2010); In re Detention of Marshall, 156 Wash. 2d 150, 125 P.3d 111 (2005).
151
will re-offend in the future. Past is prologue, and the best evidence of future offending is past
offending. Thus, in commitment proceedings, the offender's history of offending is relevant and
should be admissible. To pave the way for the offender's offense history, the rule against
character evidence should be lifted in sexual predator proceedings. Put in other words, in
commitment proceedings, the offender's character as a sex offender is ―in issue.‖686 In In re
Commitment of Franklin,687 the Wisconsin Supreme Court held that the rule against character
evidence is inapplicable in sex offender commitment proceedings.
Mental health professionals who evaluate individuals in commitment proceedings use clinical
judgment and actuarial instruments to assess the risk of re-offending.688 The Washington Supreme
For discussion of ―character in issue,‖see § 8.02.
See In re Commitment of Franklin, 279 Wis. 2d 271, 677 N.W.2d 276 (2004).
687
279 Wis. 2d 271, 677 N.W.2d 276 (Wis. 2004).
688
In re Commitment of Stevens, 345 Ill. App. 3d 1050, 803 N.E.2d 1036 (2004); In re
Detention of Erbe, 344 Ill. App. 3d 350, 800 N.E.2d 137, 149 (2003)(―Actuarial risk-assessment
instruments, like those used in this case, were developed by observing those sex offenders who
reoffend to determine which ‗risk factors‘ they have in common. One can then calculate the
relative frequency with which sex offenders with those risk factors have reoffended and thus
assess the probability that other sex offenders with the same risk factors will reoffend.‖).
See also John Matthew Fabian, The Risky Business of Conducting Risk Assessments for
Those Already Civilly Committed as Sexually Violent Predators, 32 William Mitchell Law
Review 81 (2005)(―The three actuarial instruments most often used when assessing the recidivism
of sex offenders are the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), the
Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), and Static-99.… (p. 115) There
is a growing debate among experts concerning the use of actuarial risk assessment instruments to
assess sexual dangerousness. There are conflicting views as to whether actuarial instruments are
good enough to predict recidivism in light of the possible consequences in civil commitment
hearings, such as deprivation of liberty, the use of indefinite civil commitment, and the threat to
society's safety and security.… (p. 116) In 2001, Campbell addressed the problems associated
with the use of actuarial instruments in determining sexual recidivism with regard to civil
commitment proceedings. He believes that the instruments cannot reliably support expert
testimony in legal proceedings.… (p. 117) In summary, actuarial risk assessment instruments are
in their relative infancy, and while some scholars believe they exhibit good predictive accuracy,
reliability, and consistency/stability, others disagree.… (p. 122) While actuarial instruments
appear to have more predictive accuracy than clinical judgments, there is concern that actuarial
instruments are not designed to assess the likelihood of offenders' lifetime sexual recidivism.
Actuarial instruments do not contain a full list of risk and protective factors, and they are not
meant to be fully conclusive and comprehensive in nature. Therefore, empirical/clinical
adjustment based primarily on research should be employed separately when considering
actuarial data.‖ (p. 123)); Holly A. Miller, Amy E. Amenta, & Mary Alice Conroy, Sexually
Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research
Directions, 29 Law and Human Behavior 29-54 (2005)(―Thus, mental health professionals are
able to offer the court consistent evidence that certain factors (and scores on actuarial
instruments) are associated with an increased likelihood of sexual recidivism.‖ p. 43. ―Prediction
of human behavior in any context is difficult and, at best, imperfect. Yet the last two decades
have seen an explosion in the data available on the prediction of violence risk and, in particular,
the risk of sexual offender recidivism. While that data clearly remains inadequate if one expects
to provide a simple ‗yes‘ or ‗no‘ answer regarding risk, the mental health professional has a
considerable body of evidence available that can assist the trier of fact in a way that goes well
686
152
Court observed, ―There are two broad approaches to conducting risk assessments: clinical
judgment or actuarial assessment. The clinical approach requires evaluators to consider a wide
range of risk factors and then form an overall opinion concerning future dangerousness. The
actuarial approach evaluates a limited set of predictors and then combines these variables using a
predetermined, numerical weighting system to determine future risk of re-offense which may be
adjusted (or not) by expert evaluators considering potentially important factors not included in the
actuarial measure.‖689 Several courts hold that actuarial instruments are not subject to analysis
under Frye or Daubert.690 Even if Frye or Daubert apply, use of actuarial instruments in risk
assessment is generally accepted.691
beyond chance and/or clinical judgment alone. Actuarial data can be helpful if presented in the
context of its limitations.‖ p. 47).
689
In re Detention of Thorell, 149 Wash. 2d 724, 72 P.3d 708, 724 (2003).
690
State v. Fields, 201 Ariz. 321, 35 P.3d 82 (2001)(Frye does not apply to predictions of
dangerousness based on actuarial assessment instruments); In re Commitment of Stevens, 345 Ill.
App. 3d 1050, 803 N.E.2d 1036 (2004); In re Detention of Erbe, 344 Ill. App. 3d 35, 800 N.E.2d
137 (2003); In re Detention of Thorell, 149 Wash. 2d 724, 72 P.3d 708, 715 (2003); In re
Commitment of R.S., 173 N.J. 134, 801 A.2d 219, 221 (2002)(―actuarial risk assessment
instruments may be admissible in evidence in a civil commitment proceeding under the SVPA
when such tolls are used in the formation of the basis for a testifying expert's opinion concerning
the future dangerousness of a sex offender.‖).
691
In re Commitment of Stevens, 345 Ill. App. 3d 1050, 803 N.E.2d 1036 (2004).
153

Chapter 6 CHILD SEXUAL ABUSE

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