Common Defense Tactics in Child Sexual Abuse Cases

1. Common Defense Tactics in Child Sexual Abuse Cases Ashley Harrington, Deputy County Attorney Gallatin County Attorney’s Office

2. Defense tactics in child sex abuse cases are as predictable as the sunrise: • Suggestibility • Coaching and Taint • Secondary Gain • “Mistaken” vs. Lying • Lack of Physical Findings

3. Suggestibility • Defined as the tendency of a child witness to succumb to misleading suggestions provided by an authority figure (Ackil and Zaragoza, 1995; Ceci and Bruck, 1995; 1993a; 1993b; Leichtman and Ceci, 1995; Marche and Howe, 1995; Poole and Lindsay, 1995).

4. Came into vogue as a criminal defense with McMartin pre-school case. People v. Raymond Buckey et. al. 1990.

5. The Myth • All children are highly susceptible to inaccuracies or suggestions introduced by an authority figure, and will incorporate the false information into their accounts of the events at issue. Their testimony therefore lacks veracity.

6. The Reality • Suggestibility is an inherently individual trait, for both adults and children. • Age at event • Age at interview • Types of questions • Interview context • Intellectual capacity of witness • Strength of memory

7. The Reality • Recent research indicates children may be no more suggestible than adults. (Ceci, Ross and Toglia, 1987) • Central vs. peripheral details • Options included in question (correct vs. incorrect information)

8. How to disembowel the defense: • No personal opportunity to observe/evaluate • Confront with current research • Highlight strengths of interview • Defense counsel’s cross examination

9. Areas of Consensus: • Accuracy improves with age. ( Eisen et. al., 2007) • Accuracy (although not detail) increases with free-recall questioning. • Interviewer bias increases susceptibility to suggestion.

10. Areas of Controversy • Effects of repeated interviews • Consistency as indicator of accuracy • Recantations

11. Repeated interviews • Myth: Repeated interviews are inherently suggestive and cause errors in children’s eye-witness accounts • Reality: Effects of repeated interviews are dependent upon how child was interviewed, time lapse between interviews and event, and repetition of interview questions. (Bruck et. al. 2002)

12. Consistency • Myth: Inconsistencies in children’s reports of abuse are indicative of false reports. • Reality: Research indicates that children at times vary their responses when asked repeated direct questions: offering new and different information, but still accurate. • Disclosure is a process, not an event.

13. Recantation • Myth: Recantation does not occur in children who have actually experienced abuse. • Reality: Children are at high risk for familial pressure to recant. CSAAS (Child Sexual Abuse Accommodation Syndrome) = tendency toward secrecy and retractions. Recantation rate in confirmed cases of abuse is as high as 27%. (London, Bruck, Ceci & Schuman, 2005. )

14. Coaching and Taint: • Defined as the implantation and enhancement of the abuse scenario in the child witness by an adult authority figure or peer. • Coaching most often alleged to have been conducted by parent who first took disclosure. • Taint most often alleged to have occurred between siblings or peers.

15. How to Disembowel the Defense: • First disclosure unrecorded. Only evidence of exchange is testimony of recipient. Everything else is speculation. • Did peers take the stand? Then it’s speculation. • Point to consistency and narrative detail – child development literature will be significant. • INSTRUCTION 1-002

16. Secondary Gain: • Most often alleged in cases involving divorced or divorcing parents. • Child is “concocting” abuse scenario in order to engineer placement with non-offending parent or to simply attract attention.

17. How to Counter the Defense: • Behavioral sequela in child: • Bet wetting • Changes in eating or sleep habits • Sexualization • Emotional volatility • Fear • Negative results of disclosure • Child’s testimony

18. Mistaken vs. Lying • Defense will not take your victim on directly: child is simply “mistaken”. • Call them on it: tally from voir dire every use of “mistaken”, “confused” “imagined” “dreamed”. • Wrap it up in closing – you’ll have in excess on 100 marks. Who is employing the tactics of suggestion, taint and coaching here? The defense.

19. Lack of Physical Findings • “Normal exam, so no abuse.” • Hit them with the literature: • Genital Anatomy in Pregnant Adolescents: “Normal” Does Not Mean “Nothing Happened” Pediatrics, Vol. 113, No. 1, January, 2004. • Only 2 of 36 pregnant subjects had definitive findings of penetration.

20. Other Articles: • 2384 adolescent victims of confirmed sexual abuse – 96% had normal findings on genital exam. Child Abuse Negl. 2003:26, 645-659; • “Examination Findings in Legally Confirmed Child Sexual Abuse: It’s Normal to be Normal” Adams, Knudsen & Revilla, Pediatrics, 1994;94:310-7. • 236 children evaluated w/ colposcopic photography • 14% abnormal on exam • Nancy D. Kellog, M.D.: Pub Med search.

21. There is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts. La Rochefoucauld, 1747-1827