Faulty Assessment of Child Sexual Abuse: Legal and Emotional Sequelae

By Diane K. Schetky, M.D. and Harold Boverman, M.D.
Nov 28, 2004, 01:04

Summary: Increased awareness of child sexual abuse has caused the pendulum to swing the other way to the point where unsubstantiated reported cases may now outnumber documented ones. If one includes all child abuse cases, over 60% or 750,000 cases per year turn out to be without factual basis.

 

[Reprinted with permission, circa 1985.]
INTRODUCTION
Increased awareness of child sexual abuse has caused the pendulum to swing the other way to the point where unsubstantiated reported cases may now outnumber documented ones.

If one includes all child abuse cases, over 60% or 750,000 cases per year turn out to be without factual basis. (Wall Street Journal, 4/2/85). Factors contributing to this overreporting include:
mandatory child abuse reporting laws
Increased training of professionals alerting them to the prevalence of sexual abuse
Widespread media attention to sexual abuse
increased litigation around child custody with parents alleging sexual abuse in order to deprive the former spouse of custody or visitation
Possibly mandated joint custody which leaves parents feeling uneasy or intimidated.

In some areas overzealous reporting and investigation of child sexual abuse has contributed to an atmosphere of hysteria reminiscent of the Salem Witch Trials. It has also overburdened child protective services, led to unnecessary disruption of families and generated enormous court costs and legal fees. Inevitably, the price of increased protection to children means there will he more opportunities for mistakes. We are left trying to balance the interest of children and risk of abuse against the rights of families to be free of unnecessary intrusion by the state. The pivotal point in this balancing act is often the person doing the initial evaluation of the child and which way the case goes is often a factor of the professionalism of that initial interview.

This presentation will discuss some of the perils and pitfalls in doing these evaluations. Our data derives from recent cases in the media as well as cases with which we have been professionally involved when evaluations were faulty. Our point of entry into these cases was typically late and in cases where we consulted for the defense it was not until litigation had begun. In other cases we were court appointed to evaluate the child or were involved as therapist for the child or parent, but in none of these cases were we the initial investigator. We will look at how faulty evaluations affected the outcome of these cases and make recommendations for improving the state of the art.
Problems in evaluating children for sexual abuse
Numerous articles have addressed techniques for the clinical assessment of child sexual abuse (Adams-Tucker, 1984, Benedek L Schetky, 1985, 1986, Sgroi et al 1982 and Weiss, 1983). Ratherthan reiterate what are now standard approaches, we shall address ways in which misguided investigators have abused these techniques and at times the child and her family as well.
1. Misuse of anatomical dolls
Three and a half year-old Michael, alleged to have been sodomized by his police officer father, was interviewed on video tape by one of his father’s colleagues, Officer Hammer. Officer Hammer was determined to get down to business right away with the anatomical dolls which he kept thrusting at Michael. Michael picked up on his single-minded pursuit of the dolls, and the more Officer Hammer persisted, the more Michael resisted, instead opting to play with a truck and draw. In desperation Officer Hammer pulled off the pants of the male doll and said, “Michael, look what you did, you made the dolls pants fall off!” Michael was quick to pick up on this deception and replied, “I did not, you did!” and thereafter exhibited very little trust in the police officer.
2. Failure to deal with the child’s subjective experiences
In his eagerness to get the hard data, Officer Hammer repeatedly cut off Michael’s fantasy play and attempts to draw, saying he wanted him to talk about what really happened. In court, Michael, when asked what he did with his Daddy, referred to eating couches and it became dubious as to how able he was to distinguish between his inner world of fantasy and the outer world of reality.
3. Failure to follow up on evidence and premature closure
At one point in the above interview, Michael said his father had “shoved a stick” up his bottom. Officer Hammer, now elated at finally getting some incriminating evidence, promptly terminated the interview. Unanswered were such questions as what was the stick? A thermometer? An enema nozzle (history of constipation), a hand wiping him? The wooden spoon his mother used to paddle him? Or a penis? He also neglected to establish when or where this occurred and if anyone else was present, and what was said between them.
4. Bias of person interviewing child
In some cases we have seen the mother has been primary interrogator and the child comes to identify with her. Bias may also occur in the selection of the professional who evaluates the child, or when the person doing the investigation has a pre-existing relationship with family members.
5. Coercive, threatening questions

According to one of the therapists treating a child in the Jordan, Minnesota case, an 8-year-old child alleged to have been sexually abused was kept in foster care for one year and told by a psychologist that he wouldn’t be allowed to return home until his mother admitted that the sexual abuse had occurred (Minneapolis Star-Tribune, 9/29/84). In case no. 3, an 8-year-old boy was told by his mother that he could never return home, never ride his bike, never see his father again and would have to go to the hospital where they would stick needles in him unless he admitted that his father had touched his bottom. The child’s eventual admission resulted in father receiving a life sentence.
6. Leading questions

Children, are eager to please and can often deduce from how a question is phrased what the desired answer is. For example, the boy in the Jordan, Minnesota case admitted he’d made up detailed stories of sexual abuse because, “I could tell what they wanted me to say by the way they asked the question (Newsweek, 2/18/75).” In Massachusetts a case against a daycare center was overturned when the judge refuted the social worker’s investigation saying, “I found her methods so suggestive, coercive, and repetitious and that any information obtained by her from the children was so tainted as to be totally unreliable (Worcester Telegram 8/2/85).”
7. Failure to consider impact of prior sexual abuse
In several cases children were unduly knowledgeable about sexual matters prior to the alleged sexual abuse (cases, 6, 7). The child who has been previously sexually abused may sexualize relationships with adults and even accuse the wrong person of abusing him. For instance, 8-year-old Brian was referred to his school guidance counselor because he was holding his recorder between his legs in music class while simulating masturbation and cracking homosexual jokes. While being seen by the guidance counselor he drew a picture of two nude boys in bed “getting it on” while their parents watched TV in the adjacent room. He then began making phalluses out of clay and in his excitement exposed himself to the guidance counselor. Several months later he charged the guidance counselor with touching his penis and exposing himself. The counselor was suspended and months later at his trial he was charged with doing “sex therapy” with the child along with sexually abusing him, and the state even produced a clay phallus in evidence. The child psychiatrist for the defense argued that allowing Brian to draw a picture of his sexual concerns was not inappropriate given the reason for referral, and that it did not constitute “sex therapy.” She pointed out that in their eagerness to convict the guidance counselor, no one had pursued the issue that Brian had most likely experienced prior sexual abuse and was possibly projecting his own wishes to exhibit himself onto the guidance counselor.
8. Neglect of family dynamics
Jenny, age 7, as a result of prior psychiatric evaluation of alleged sexual abuse, had been having supervised visits with her father for two years. Fed up with this arrangement, her father filed for custody once Jenny underwent yet another evaluation. When seen by one of the authors, she admitted that her father had never sexually abused her but said she’d been afraid to tell anyone for fear that her mother would get angry with her. She presented as a very needy child whose primary contact with her mother was Physical and consisted of sleeping with her. She’d received excessive sexual stimulation in her mother’s home, including watching Deep Throat, and was privy to frequent lambasts against her father by her mother and maternal grandmother who had little use for him and had planted the seeds of suspicion re possible sexual abuse. The fact that she was now retracting allegations in absence of any pressure to do so was attributed to her increased maturity, ability to think for herself and consider the consequences of false allegations on her rather to whom she remained closely attached.

In a similar case, a mother projected her own sexual concerns over her daughter by examining her genitals on return from visits with her father. Ironically, in such cases the mother could be charged with sexual abuse because of extraordinary sexual stimulation.
9. Inadequate evaluation
In the Hennepin County case, Jean and Jane Doe, ages 2 and 4, were abruptly removed from home by the police, based solely on an anonymous allegation and a complaint by a vindictive neighbor who later proved to be the anonymous caller. The children were placed in foster care prior to any evaluation being done on them or their parents, and they remained there for two weeks. The neighbor was highly critical of the Does’ hippie lifestyle and alleged that the children often swam nude and were allowed to explore their bodies freely. He interpreted the girls trying to unbutton his shirt as a sexual advance when in fact, as their mother later explained, they were going through a phase of “naval infatuation” and were curious to see if other people also had them. The therapist who evaluated them initially spent less than an hour with them and admitted this his usual investigator’s methods were useless because both girls were withdrawn and uncommunicative. He interpreted their spontaneous denial of sexual abuse as evidence that they had been coached.
10. Failure to address the issue of competency
Although we are often not asked to evaluate competency to testify, the issue needs to be addressed in terms of whether or not to pursue criminal charges against the alleged offender. Competency to testify in children under age 14 is determined the judge and is based upon determining that the child has a reliable memory, can differentiate truth from falsehood and appreciate that lying is morally wrong. The legal criteria for competency do not take into consideration the child’s ability to distinguish fact from fantasy, ability to cooperate and withstand cross examination, nor the child’s suggestibility and loyalty conflicts, all of which will affect his testimony and demeanor in the courtroom. It has been demonstrated that the presence of leading questions increases the likelihood that subjects will give answers consistent with misleading information after a two-week delay (Dale) and that children are more susceptible to misleading information than adults. Further, the ability to understand abstract concepts of right and wrong and truth and falsehood does not preclude the child from lying in face of emotional conflict (shame, fear, loyalty conflicts) nor does it mean the child can distinguish objective truth from subjective interpretations.

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In the case of Michael, the prosecution went forward on the basis of his statement that his father had shoved a stick up his bottom and equivocal medical findings. No attempt was made to understand family dynamics and the fact that his mother was increasingly threatened by his closeness to his father whom he and his sister visited frequently. Also neglected were his oppositional tendencies and long history of withholding bowel movements. In absence of corroborating evidence, the case rested on whether Michael would cooperate and repeat his accusations before the jury. In court he proved very uncooperative and taxed the patience of the jury with his balkiness and refusal to “tell what happened.” His silence on the matter seemed to be his way of handling obvious loyalty conflicts, and once again he rejected the anatomical dolls. His mother was allowed to sit next to him and her anxiety was clearly infectious as he clung to her saying, “get me out of here.” In effort to elicit more cooperation, the hearing was transferred to the judge’s chambers with parents excluded and the proceedings transcribed to the jury via a two-way closed circuit TV. After 45 minutes of wooing Michael, he entered the judge’s chambers, only after insisting the judge first remove his robe.

Once there, he played happily, seemed more relaxed, but nonetheless just as resolute as before when it came to answering questions about sexual abuse. After five days of testimony, the state failed to prove their case and Michael’s father was acquitted. In the meantime, father’s legal fees amounted to $30,000.

Jenny was 5 when called upon to testify in criminal proceedings against her father. After talking to her alone in chambers, the judge decided she was not competent to testify, even though her father wanted her to because he was certain she’d prove his innocence. The case then went to family court, but because her father had not been acquitted, an order was rendered for supervised visitation.
11. Failure to address the child’s credibility
In case no. 18, a 6-year-old boy spoke of fibbing to his mother and his father on two different occasions with the psychologist evaluating him. In the course of the evaluation, he proceeded to cheat in a game, then lie to the psychologist about this. In his testimony in court, the child denied ever having discussed fibbing with the psychologist. In spite of all of this and very equivocal statements by the boy about the alleged sexual abuse, the psychologist concluded that the child had been sexually abused.
12. Dangers of repeated interviews
The child may view repeated interviews as a demand for more or different information and feel that the interviewer is not satisfied. Or if the allegations are false but repeated enough, the child may come to believe them, especially if they result in approval from adults.
Summary of our experience with faulty evaluations
We reviewed our experiences with 15 cases of faulty evaluations of child sexual abuse in which we were later brought in to testify as experts, or give second opinions or became involved as therapists. In eight cases we became involved upon request of the defense, in three cases upon request of the plaintiff, and in another three cases we were court appointed or agreed upon by both parties. In two cases our involvement was that of a psychotherapist for the involved member. We added to these cases four well publicized ones from the media and one about which we had secondhand knowledge.

The initial evaluations in these cases, some of which were duplicated, were conducted by the following:

Police 10

Social Worker 7

Psychologist 2

Psychiatrist 1

Psychoanalyst 1

Rape crisis counselor 1

The most common reasons for their evaluations being discredited in court were:

Leading questions 9

Inadequate evaluation 7

Bias 3

Misuse of anatomical dolls 4

Coaching 2

Bribery 2

Faulty evaluations were felt to have been a major factor in six cases being dropped and in five acquittals. Four cases are still pending. In case no 2, the father was convicted for life based in part on admissible evidence consisting of a highly threatening an coercive interview done by the child’s mother who was separated from the father.

The implications of faulty evaluations are considerable and in our experience have included, in addition to the conviction of a father who may have been innocent, acquittal when the offender was probably guilty. Further, many children suffered from disruption of family life and some were sent to foster care with very restricted visits by parents. Alleged offenders suffered loss of employment while awaiting trial and some because of the adverse publicity surrounding the cases. One physician, later acquitted almost lost his license. False labeling of offender and child and damage to professional reputation were common. Legal costs were often formidable and in some cases extraordinary costs were incurred by the state in prosecuting these cases. Finally, in three cases countersuits arose against investigators and state agencies who were involved in the initial evaluations.
The role of the child psychiatrist
Typically it is unusual for child psychiatrists to be involved on behalf of the child in criminal proceedings as rulings against hearsay evidence preclude our participation as witnesses. Our role may he restricted to prior evaluation of the child or preparing the child to testify. The child psychiatrist may be called upon as an expert witness to testify to hypotheticals or to educate the jury and court as to situations in which false allegations of sexual abuse may arise and to what constitutes a proper determination of child sexual abuse. We may also be called upon by the defense to critique evaluations, video tapes, or interviews done by others to help them develop their case and instruct counsel as to how to interview the child witness, and even to observe witnesses in court. In these cases we are often operating at a disadvantage, not having had any direct access to the plaintiff.

The child psychiatrist is more likely to be involved in cases routed through family court where our input is sought regarding assessment of individual family members, family dynamics and questions regarding disposition and treatment recommendations.

A relatively new area involves plaintiffs seeking damages for sexual abuse through civil court. Here the role of the psychiatrist is that of expert witness defining the extent of specific and general damages and predicting what future damages related to sexual abuse may be.

Probably the most efficient use of our time and skills, but least used, is in the role of consultant to those agencies on the front line of intervention in child sexual abuse. We are in a key position to assist in training and ongoing supervision, yet in our experience agencies are reluctant to pay for this type of consultation from our profession.
What can we learn from these cases?
1. The child’s allegation of sexual abuse must not be taken in isolation. One must evaluate family dynamics, past history of sexual abuse or excessive sexual stimulation, all of which may shed light on present allegations.

2. The child’s credibility needs to be assessed in terms of cognitive and emotional maturity, past history of honesty, coaching, being subjected to leading questions or undue familial influence and possible ulterior motives.

3. We need to bear in mind both legal and psychiatric criteria in deciding whether or not the child is competent to testify.

4. Caution needs to be exerted in the use of anatomical dolls which should never be forced upon children. As Renshaw reminds us, “explicit dolls or cartoons do not make an instant expert of a counselor, police officer or state’s attorney..” Nor has anyone yet to demonstrate how normal children play with these dolls. Perhaps dolls should only be issued to those licensed to use them.

5. We need to be mindful of the possibility of false allegations of child abuse arising in child custody and visitation disputes (see Schetky & Benedek, 1985).

6. Such has been said regarding the potential trauma of having a child testify before someone who has sexually abused her. We need also ask what of the trauma to the child who is coerced into testifying against a parent who has not abused her or, because of false allegations, is deprived of contact with a parent.

7. Finally, as is apparent in these cases, there is now a high likelihood of countersuit against professionals who have deemed a child sexually abused. These cases demand the most thorough evaluations and we must not compromise our standards in response to time pressures from agencies, police or courts.
Recommendations

1. Develop more definitive and agreed upon criteria for diagnosis of child sexual abuse in children.

2. Joint investigation of child sexual abuse cases to eliminate duplication of efforts between police, protective services and district attorney’s office,

3. Routine videotaping of initial interview to spare the child subsequent interviews prior to court. Interviews on tape may also promote guilty pleas by the defendant and eliminate the need for the child to testify in court.

4. Specialized training to police and protective services workers in the art of developing defendable, valid interviews which are uncovering nontraumatic interview techniques and do not lead or intimidate the child.

5. Educate attorneys and judges about sexual abuse so as to provide intelligent lines of questioning. E.g., in a recent trial I was commenting on under what circumstances a child may not be truthful about alleged sexual abuse. The judge insisted I disregard my experience with some (100 cases of child sexual abuse and restrict my comments to how the 6-year-old plaintiff compared with other 6-year-old male victims of child sexual abuse that I have personally examined! I attempted to explain that credibility had nothing to do with the child’s sex but he would not hear me!

6. Legislative changes

Eliminate hearsay rule in child sexual abuse cases eliminate need for corroboration–eliminated in all states but Nebraska

Eliminate or having to testify repeatedly where there is more than one dependent

Permit use of videotapes and closed circuit TV in criminal trials–model of New York State

7.Legislative remedies in Oregon–Citizens review board

In Oregon the 1985 legislature established and funded a program of local citizen review of all Children Services Division cases. This came about as a direct result of overzealous and not so terribly sophisticated pursuit of physical and sexual abuse cases and premature and unilateral removal of children from homes without considering future consequences. The campaign was launched by a Trappist monk who gave up his vow of silence, probably fueled by his own struggles about his own sexual drives and identity and, in part, sustained by maintaining a sympathetic attitude towards the now maligned father. This is a much better response than suing professionals and semiprofessionals for malpractice.
REFERENCES

Adams-Tucker,C (1984) “Early Treatment of Child Incest Victims”, Am. J. Psychotherapy Vol XXXVIII no 4 505-515

Benedek, E. and Schetky, L.H. Allegations of Sexual Abuse in “Custody and Visitation Disputes” in Emerging Issues in Child Psychiatry and the Law New York: Brunner/Mazel, 1985

Dale, P.S., Loftus, E.F.& Rathbun, L. (1978) “The Influence of the form of the question on the eyewitness testimony of preschool children.” J. Psycholinguistic Research, 7, 269-177

Mrazek, D. “The Child Psychiatric Examination of the Sexually Abused Child” in Sexually Abused Children and Their Families. Ed. P. Mrazek and C. H. Kanpe.

Renshaw, D. (1985) “When Sex Abuse is Falsely Charged.” Medical Aspects of Human Sexuality 19 no 7 Jul ’85 44-52

Schetky, D.H. and Benedek, E.P. “False Allegations of Sexual Abuse.” Submitted to Int. J. Child Abuse & Neglect

Sgroi, S., Forter, F., and Blick, L. “Validation of Child Sexual Abuse” in Handbook of Clinical Intervention in Child. Sexual Abuse ed. Sgroi, Lexington Books, Lexington, Mass, 1982

Weiss, E, (1983) Incest Accusations: Assessing Credibility.

Presented at the Annual Meeting of The American Academy of Psychiatry and the Law, Albuquerque, N.M., October 10, 1985

Dr. Schetky is Associate Clinical Professor of Psychiatry at the Yale Child Studies Center and in private practice in Wilton, CT.
Dr. Boverman is Clinical Professor of Psychiatry, Oregon Health Sciences Center, and in private practice in Portland, OR.

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