In every case of child sexual abuse that goes to trial, it is often the child’s testimony that is the most crucial part of the prosecution’s case. Since the child is typically the only real witness against the suspected abuser, successful prosecution depends on how credible the child will be. This is especially true when there is no forensic evidence available and the case rests on the child’s word against the suspect’s.
According to the Story Model of juror decision-making, people sitting on a jury are swayed by the side telling the most believable “story” about what actually happened. After hearing conflicting accounts from the plaintiff and the defendant, the side with the most coherent account tends to be the one that is believed. Defence attorneys are often required to interrogate child witnesses to shake their confidence or otherwise suggest that the child was coached into making false or inaccurate statements about the client. Given the serious nature of the charge and the likelihood of the defendant being classified as a sex offender for life, the attorney is strongly motivated to cast as much doubt as possible on the child’s testimony.
One approach that prosecutors often use to reinforce the child’s testimony is to question the child about his or her subjective reaction to the abuse (“How did you feel when he touched you there?”). By focusing on subjective reactions instead of actual events, prosecutors are able to avoid the suggestion that children were unduly influenced. Unfortunately, children tend not to understand the full implications of their abuse and are more likely to be confused than traumatized by their experience (the trauma often comes much later as they recognize the full nature of their abuse).
Researchers have also found that children respond better to open-ended questions (“What happened”) than questions that can only be answered by “yes” or “no”. While prosecutors are usually not allowed to ask leading questions of witnesses, this rule tends to be relaxed somewhat in cases involving child witnesses since prosecutors need to rely only on their verbal recall of the abuse. Along with cross-examination by defense attorneys, children giving testimony experience tremendous courtroom stress that can interfere with how well they can recall and describe what happened in private. The fact that the defendant in the case is typically someone that the child being questioned knows and needs to face in open court can be traumatic as well. All of which makes child abuse interviews an extremely delicate process for both the child and the interviewer.
A recent issue of Law and Human Behavior describes the results of two provocative studies examining how child witnesses are able to describe the effect that their abuse had on them. Conducted by a team of researchers affiliated with the University of Southern California’s Gould School of Law and the Department of Psychology, both studies examined how child testimony was used in recent abuse cases.
The first study examined all child sex abuse cases heard in Los Angeles County between 1997 and 2001 (nearly 3,800 cases). For the purpose of the study, child sex abuse was defined as “contact sexual abuse of any child under the age of 14”. Of all the cases examined, only 309 went to trial (a total of nine per cent) with other cases being settled following a plea bargain or dismissal of the charges.
Of the convictions that went to trial, the transcripts were examined for 235 cases (including all acquittals and mistrials) and included testimony from more than 400 child witnesses. Of those child witnesses, 80 were selected randomly for further study. For those child witnesses examined (average age of 12), content analyses of the types of questions asked of them during their testimony showed that children’s testimony about their emotional and/or physical response to the abuse often varied significantly depending on the specific nature of the questions asked during the trial. Since children on the witness stand are often dealing with tremendous stress, they may be reluctant to given spontaneous testimony about how the abuse affected them.
The second study examined the role of the type of questions that child witnesses face more directly. Examining transcripts for 61 children who had been referred to the Los Angeles County-USC Violence Intervention Program (VIP). The VIP program is operated by the University of Southern California and deals with suspected cases of child abuse that were referred to them by child protective services or directly by police. All children referred to the program receive a complete medical examination and a forensic interview on admission. The 61 children used in the second study admitted to being abused (the average age was nine years).
Along with careful instructions about responding truthfully and forming a complete narrative, the children were persuaded to provide more details about their abuse. That included picture drawing of family members and a “feeling task” with children being asked to describe their feelings about different times in their life. The researchers found that details about abuse and how the child reacted to the abuse varied with the type of questions asked. While children rarely provided spontaneous descriptions of how the abuse affected them emotionally, having them describe feelings about other positive and negative times in their life made them more open about their emotional reactions to abuse. In one case study that the researchers described, asking the child to “tell us about the time you were the most sad” led to the child reporting abuse by a stepfather.
Overall, the results of the two studies suggest that children’s testimony about abuse can be made more believable by a jury if they are asked specifically about how the abuse affected them emotionally. Since children typically show little emotion when giving testimony about abuse or in forensic interviews, juries may be less inclined to believe them since they expect victims to be emotional when describing their victimization.
Although these two studies have important implications in showing better ways of questioning children about abuse, the need to educate juries that children testifying about abuse often fail to show the emotional reactions that jurors expect to see. The credibility of a child’s testimony should not depend on how well they can present themselves on a courtroom witness stand. In the case of child sexual abuse, the need for proper questioning and a basic understanding of what the child experienced can mean the difference between successful prosecution or continuing abuse.