South Eastern Centre Against Sexual Assault & Family Violence

Children's evidence

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Legal professionals and social scientists have engaged in much dialogue about the veracity of the rising number of allegations of sexual abuse. Children most often allege sexual abuse against an adult who usually denies the allegation. There are also increasing allegations being made against other children who are typically some years older than the alleged victim. Therefore, children who allege sexual abuse are required to challenge the statements of someone who is usually more knowledgeable, believable, and of higher status than themselves, about an experience that many adults do not want to believe happens to children.' Because of the lack of physical evidence in most cases of sexual abuse there is rarely corroborating evidence to support the allegation. Therefore, it is the word of a child against an older person, usually an adult.

The venue for hearing sexual abuse allegations made by children in Australia, and most other Western countries is the criminal rather than the children's court: Although it has always been possible for children to testify in criminal courts, it is mainly as a result of the increasing numbers of children alleging sexual abuse since the 1980s that significant numbers of children began testifying in criminal courts. Once children took the witness stand, however, defence lawyers challenged their competence to provide reliable and truthful testimony and many cases resulted in the acquittal of the alleged perpetrator on this basis. These challenges, however, drew on research that was unrelated to children's memory for events they had personally experienced. They also relied on methodologically questionable research of children's ability to differentiate lies from truths conducted by Piaget many decades ago.(4)

As a result of these challenges to the testimonial competence of young children, research was conducted that departed from the earlier research on children's memory by using more ecologically valid testing procedures. These studies showed the children could accurately report their experiences, particularly quite stressful ones.' The research also showed that children as young as four years of age did have the capacity to differentiate lies from truths.(6) Such research findings contributed to beliefs about the ability of children to testify in courts, yet problems remained with them serving as child witnesses in these venues. The courtroom was a foreign environment for young children, and they encountered difficulties in presenting their testimony in this environment that catered mainly for the reception of adults' evidence.

To accommodate these young witnesses, changes were made to the courtroom environment as well as to the rules of evidence. For example, in New South Wales, one major change was the abolition of the need to take the oath to be eligible to testify.(7) Prior to 1991 it was virtually impossible for a child below the age of 12 years to testify in a criminal court, since she or he had to understand the oath and swear by it to be eligible to testify. Modifications to the law mean that children who understand the difference between a lie and a truth can provide an unsworn statement to the court and have their allegations heard in that venue. For the most part, laws requiring the corroboration of children's statements have been dropped, hearsay exceptions have become more liberal, and innovations such as closed-circuit video and screens to shield the victim from the alleged perpetrator have been put in place. These changes, aiming to make it easier for children to testify in criminal courts, have not, however, gone unchallenged.

At about the same time these modifications were being implemented in courtrooms in many Western countries, concern was being voiced about these changes increasing the possibility of false allegations of sexual abuse. Concern about false allegations also arose from two other sources: the so-called "false memory syndrome" and the number of high profile cases that cast doubt on the testimonial competence of young children. For example, the McMartin and Kelly Michaels cases in the United States of America and the Mr Bubbles case in Australia. Because the major concern in this paper is with children's evidence, only passing mention is made of the false memory syndrome, which involves allegations of sexual abuse by adults who "recover" repressed childhood memories of such abuse. The name "false memory syndrome"; rather than "recovered memory syndrome" emerged mainly as a result of the efforts of a group of parents who alleged that they were falsely accused of sexual abuse by their adult children. 'These parents subsequently established the False Memory Syndrome Foundation.' They claimed that their adult children accusers were led to make such allegations as a result of suggestive therapy sessions and or suggestive information provided in various self-help books.(8)

There is controversy over whether memories can be repressed and, if repressed, whether they can be recovered. The concept of repression with its Freudian heritage has had a chequered history in psychology. Whether people feel less inhibited to report sexual abuse as a result of media discussion of its prevalence, or whether repressed memories of abuse are recovered, or whether people are led to make false accusations of sexual abuse as a result of suggestive therapy sessions, is impossible to establish.(9) Because the abuse occurred so long ago it is as difficult, if not more so, to substantiate and corroborate the veracity of these allegations, as it is to substantiate the allegations made by children at, or around the time of their alleged abuse. In both cases, the lack of physical evidence contributes to the difficulty in resolving the veracity of sexual abuse allegations. An extensive discussion of this syndrome, however, is beyond the scope of this article. What is of importance here is that the media focus on the false memory syndrome has led to further questioning of the veracity of sexual abuse allegations made by children and has influenced professional and lay opinions of such allegations.(10)

The other impetus to the backlash against believing the testimony of child sexual abuse victims derives from the controversy over the high profile cases involving preschool children. There has been close media scrutiny of cases such as the McMartin and Margaret Kelly Michaels cases in the United States, and these commentaries have been relayed to most other Western countries. Recently, a telemovie about the McMartin case was shown on primetime television in the US. Additionally, these cases have generated considerable debate in academic journals and books.

Much of the controversy associated with these cases has centred around the contaminated evidence of child witnesses resulting from highly suggestive interviewing techniques used to elicit their allegations. Illustrative examples of the interviewing practices used in the Kelly Michaels case are provided below:

Interviewer: All the other friends I talked to told me everything that happened. 29C told me. 32C told me... And now it's your turn to tell. You don't want to be left out, do you?

Interviewer: Boy, I'd hate having to tell your friends that you didn't want to help them.

Interviewer: Now some of the kids were saying that maybe this stuff [silverware] was used and somebody was hurting them with it.

Interviewer: I will get you the badge if you help us get this information ... like all your other friends did.

To substantiate the inadequacy of such interviewing practices, many laboratory based studies have been undertaken to demonstrate that when young children are asked suggestive and leading questions they are more likely than older children and adults to succumb to such suggestions.11 'The title of a recent paper, `Tell me about ... Don't you remember ..? Isn't it time that ? Developmental patterns of eyewitness responses to increasingly suggestive questions",(12) illustrates this point. Such research has served to further cast doubt on the reliability of the testimony provided by child witnesses in sexual abuse cases and on the veracity of their allegations. In fact, this corpus of research was part of the evidence used in the successful appeal against the conviction of Margaret Kelly Michaels on 115 counts of sexual abuse against children at the Wee Care Day Care Centre.(13) The basis of this appeal centred on the suggestive interviewing procedures used in the case, which cast doubt on the reliability of the testimony of children who testified.

As a result of the poor interviewing methods used in such cases, researchers have become increasingly interested in children's vulnerability to suggestion and the extent to which they falsely allege events that have not occurred. As well as empirical interest in children's suggestibility there is a great deal of theoretical interest in the issue, as demonstrated in a recent review article by Ceci and Bruck entitled. "Suggestibility of the child witness." (14) 'This article has had an impact on both academic and legal circles and served as the basis of the amicus brief filed by Bruck and Ceci in support of Margaret Kelly Michaels' appeal against her conviction. (15)

The major purpose of the 1993 review paper was to answer the question. "Are younger children more suggestible than other children'?"(16) Ceci and Bruck concluded that overall, younger children, particularly preschoolers, are more suggestible than older children.(17) They noted, however, that controversy remains over the pervasiveness of children's suggestibility. In particular, it was concluded that children may only be vulnerable to suggestibility for some types of misleading questions, as has been argued by Fivush:

Experiments in which children are given misleading information about personally experienced events, as opposed to misinformation about stories. tend to find less of an effect of misleading information ... Events which are extremely personally important are probably less prone to suggestion than are less important events ... finally, misleading information is more likely to influence future recall when it is about peripheral details of an event rather than more central aspects (18)

Other researchers have also argued that children are unlikely to make false allegations of abuse, regardless of how they are interviewed:

If these results can be generalized to investigations of abuse, they suggest that normal children are unlikely to make up details of sexual acts when nothing abusive happened. They suggest that children will not easily yield to an; interviewer's suggestion that something sexual occurred When in fact it did not, especially if non-intimidating interviewers ask questions children can comprehend 19

Ceci and Bruck, however, concluded that "[o]ur review of the literature indicates that children can indeed be led to make false or inaccurate reports about very crucial, personally experienced, central events".(21)

In view of this conclusion by Ceci and Bruck, it is curious that so many recent studies have been conducted to demonstrate that when poor interviewing practices are used that rely on suggestion and coercion, as in many of the high profile court cases, younger children succumb to the suggestions of the interviewers and provide inaccurate information. Surprisingly, little recent research has addressed the more crucial question of how to improve the interviewing practices of adults who interview children in sexual abuse cases without asking leading questions.

It has become critically important for researchers to discover more effective ways to interview child witnesses that will not contaminate their evidence, since in some jurisdictions, the introduction of taint hearings prior to the trial to assess the reliability of children's evidence have been proposed. Evidence that could have been contaminated by suggestive interviewing practices would be deemed inadmissible at trial because of its potential unreliability.(21) This departs from previous views on children's testimony where it has been argued that it is the jury's responsibility to determine the credibility of their statements. Rather, because of the potential for suggestive questioning to alter children's memory for the event, not just their reporting of it, it would be necessary for the taint hearing to first establish the reliability of the children's evidence. Establishing the reliability of evidence is a legal decision. Once this is established the jurors would decide on its credibility. However, in view of the research findings on suggestive interviewing, the reliability of the evidence would be in doubt if suggestive questioning had been used in any of the pretrial interviews. Consequently, in such circumstances children's evidence is likely to be deemed inadmissible. Therefore, it is crucial that improved methods are used to interview children to facilitate the disclosure of secretive and embarrassing information without being suggestive. Before addressing the topic of improving interview techniques for child witnesses, two factors that may have led to the widespread adoption of suggestive interviewing practices in forensic settings are examined.


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