Contradictions in the Legal Doctrine Concerning Child Sexual Abuse
K. Edward Renner, Ph.D.
Laura Park, M.A. 1
Department of Psychology
The law recognizes that children are less able than adults to understand situations and to make decisions. For this reason, full and complete responsibility is placed on adults to refrain from any sexual contact with a child. Children do not forfeit their standing as a minor when they are called upon in the courtroom as a witness to give testimony about their abuse. However, once on the witness stand the children appear to become "unprotected" and adult agents of the court may use their higher level of mental development to exploit them. Thus, the legal process repeats the very act from which the proceedings are intended to protect the children. This contradiction arises from outdated legal precedents regarding the capacity of children to provide reliable testimony. The problem is neither complicated nor is the solution difficult. Children have the capacity to accurately recall their experiences, but not to answer questions which they cannot understand. The legal process must simply shift the responsibility for proving competence from the child, to the responsibility of the court to ask questions the child is cognitively capable of answering. There is good legal precedent for extending this special legal status of children, which protects them from exploitation by adults outside of the courtroom, to a court of law.
In the context of sexual abuse, age is of particular importance, because it is the defining characteristic of this criminal offense. By definition, "child sexual abuse is the misuse of power by an adult to manipulate into sexual contact children who are too young to be fully independent and responsible" (Hornick & Paetsch, 1995, p.6). For this reason, special legislation has been required to deal with sexual offenses against children which place full and complete responsibility on adults to refrain from any sexual contact with a child.
In cases of sexual abuse, the primary witness is a child who needs special consideration, but yet, by the same definition, being "too young to be fully responsible" also implies limited capacity to be a witness. This apparent contradiction must be addressed in a reasonable procedural manner. The failure to do so would leave children open to exploitation because they are minors, and the exploiter free from sanction because it is a child who is the victim. In this paper we attempt to show that the rules governing the evidence given by children are based on outdated legal precedents and incorrect assumptions regarding the capacity of children to provide accurate testimony. As a result, children who are sexually abused may not be afforded the full protection of the law.
This problem is neither complicated, nor is the solution difficult. The failure of our legal procedures to extend the protection of law to children primarily results from a failure of the justice process, not from the characteristics of the child. Obviously, a child does not stop being a child when they leave the playground to become a witness. The basis for a simple solution is outlined whereby the procedures of the court will not themselves be responsible for excluding children from full legal protection due to their special status of being a child when they also become a witness.2
The Special Legal Status of Children
Although it may seem elementary, children are less developed than adults to understand situations and to make decisions and judgments. As a result, they are afforded a variety of special considerations in many areas of life by virtue of being a child. As an example, they may not be sold cigarettes or alcohol, and it is the obligation of the adult responsible not to do so, even when requested by the child. In addition, there are many precedents for the courts and the legal system to afford children special status and protection.
An adult cannot sign a contract to provide a young child with a dish of ice cream on demand in exchange for 50% of the child's future life-time income. Such a contract, unlike other contracts made with individuals over 18 years of age, is not binding on the child, and cannot be enforced through the Canadian civil courts. An adult cannot enter into an exploitive contract with a young person (MacNeil, 1991).
Canadian family law is premised on the "best interests of the child" doctrine. The courts act on the basic hypothesis that decisions, such as custody arrangements, should be governed by one guiding force, the welfare of the child. The legal assumption is that in areas where the child is unable to do so, by virtue of being a child, that the court will step in to ensure that the child is not exploited.
In custody disputes, the courts have
interpreted the "best interests" doctrine to include hearing a child's
wishes in the proceedings (Bala, 1981). The notion of receiving evidence
about a child's wishes rests on the supposition that children hold and
can communicate unique insights into their lives which are important in
the Judge's decision (Bala & Miklas, 1993). Essentially, the courts
are demonstrating a respect for the child's knowledge while acting to protect
the child's ultimate welfare.
Understanding Legal Proceeding
When a child commits an offense that brings him or her into contact with the law, the juvenile justice process is brought into play. The process for young offenders is designed to ensure that the minor will understand the proceeding and not be disadvantaged by virtue of a young age (Young Offenders Act, 1985). The implicit value is that justice cannot be served if the child cannot understand the process.
The Child as Witness
The other important way that children come before the court is as a witness. Clearly, children should not forfeit their standing as a child when they are called by the courts to be witnesses at a trial. They maintain the same mental status when they are witnesses in the courtroom as they do when they are playing in the park. Once on the witness stand, however, the child who needs to be protected from a contract exchanging future life-time income for ice cream appears to become "unprotected," and may be exploited, in a similar fashion, through the advanced cognitive development of an adult authority of the court (Bala, 1991; Park & Renner, 1998; Renner, Alksnis, & Park, 1997; Saywitz, 1995).
The fact that children have an underdeveloped mental capacity in comparison to adults is a well-accepted social truth and an empirically documented scientific fact. Yet, the courts remain quite rigid in assuming that some common courtroom practices and legal doctrines are absolute, and therefore inflexible to accommodate the actual capabilities of the child witness. Just the opposite is true. It is the child's mental development which is fixed and relatively absolute at any given chronological age, and it is the court procedures and legal doctrines which are arbitrary and negotiable rules, established for convenience for achieving justice, and which are subject to revision and change. This point can be illustrated most clearly with respect to the issues of "sworn testimony" and "cross examination".
Early common law practice was to disqualify testimony solely on one factor, age. The courts set forth that a child of 14 years possessed a full capacity to testify R. v Brasier, 1779). The age was set because of a belief that it was related to a natural intelligence to understand what was seen or heard, a capacity not believed to be present in younger children.
Over one hundred years passed before the court ruled that chronological age was no longer a factor in the determination of admissibility, but rather the understanding of speaking the truth and the existence of corroborating evidence (Canada Evidence Act, 1893). If the Judge was of the opinion that a child did not understand the nature of the oath, nor the divine consequences of telling the truth, the child was to be excluded from testifying. The testimony of a child was also excluded if corroborating material evidence was unavailable.
In 1988 in Canada, Bill C-15 was proclaimed into effect (Criminal Code of Canada, 1987). The Bill no longer required corroboration of unsworn testimony and made it an offense for anyone to sexually exploit, interfere, or touch a person under 14 years of age. However, Section 16 still requires the Judge to make an inquiry into the competency of a child to give evidence, based on the capacity to understand the meaning of an oath and/or solemn affirmation for sworn testimony, or to understand the meaning of telling the truth for unsworn testimony. Similarly, in the United States, many states continue to require competency assessments of child witnesses by Judges who may or may not be knowledgeable in child cognitive development (Dziech & Schudson, 1989). Thus, many North American courtrooms assume that if a child is old enough to understand the meaning of taking an oath or solemn affirmation, the testimony can be taken as reliable. Since this is never the case for very young children, the Judge can only permit a child to testify if the child, in the opinion of the court, understands the importance of promising to tell the truth. As an example:
Judge: Do you know what it means to take an oath?Many researchers believe that most child witnesses possess the intelligence and abilities required to describe their experiences in the courtroom (Fivush & Hammond, 1990; Goodman & Reed, 1986, Hammond & Fivush, 1991; Saywitz, 1995). However, they are likely to lack the cognitive development required to understand the use of concepts such as "oath" or "solemn affirmation" in competency examinations. Further, Bala (1991) questions the number of adult witnesses who could provide satisfactory answers to such competency questions.
Judge: Do you know what it means to take a solemn affirmation?
Judge: Can you tell me if it is important or not to tell the truth when people ask you questions?
Child: If you lie your Dad might spank you.
Judge: Well that is not good is it? Have you ever been spanked by your mom or dad?
Judge: Do you know what it means to make a promise?
Judge: What does it mean?
Child: To tell the truth and not to lie.
Judge: I want you to promise me that when you are asked a question here today that you will tell the truth.
Judge: I don't want you to be making up any stories, do you understand that?
Judge: Counsel under section 16 of the Child evidence act I am satisfied that the child is able to communicate the evidence. I am not satisfied, however, that the child knows the meaning of an oath or a solemn affirmation, however, I think her evidence can be heard under the promise to tell the truth so the child will not be sworn.
To determine the age appropriateness of the requirements to give "sworn" or "unsworn" testimony, we collected a sample of 18 adults (aged 22-50) and 90 children (aged 7-11) who participated in a mock competency assessment. Only a few adults and not one of the children were capable of defining a solemn affirmation or an oath. These results indicate that the requirements to provide "sworn" testimony for children appear to demand advanced cognitive skills and the comprehension of terms that some of the adults in the sample could not demonstrate. In turn, for "unsworn" testimony, the children in this sample were no less capable than the adults of promising to tell the truth which is all that is required of adults giving evidence in the courtroom.
This competency examination process, however, has been highly criticized as research has shown that a child's capacity to tell the truth does not rest on his/her ability to understand the meaning of a solemn affirmation, nor on promising to tell the truth, but rather on being asked questions they are able to understand (Bala, 1992; Brennan & Brennan, 1990; Flin, Stevenson & Davies, 1989; Saywitz, 1989; Warren-Leubecker, Tate, Hinton, & Ozbek, 1989). By the definition of being a child, the child's mental capacity is not fully developed. If it was equal to that of adults there would not be any need to afford children special legal protection.
Yet, in no other environment, except providing testimony in court, are children given the extra legal burden of demonstrating competency when, by virtue of age, he/she does not have legal responsibilities. To remedy this problem, the legal process must simply shift the responsibility of proving competency from the child to the responsibility of the court to ask questions the child is competent to answer.
The courts are preoccupied with the fear that children are prone to fabricate tales of sexual abuse. These fears are based on outdated perceptions that children are not able to differentiate between what they imagine from what is reality, or that children are simply prone to lie. Since the early decades of research into developmental psychology, a reappraisal of children's intellectual capacity has occurred and recent research has shown that children's are no more prone to lying than adults (Bussey, 1992; Harris, Brown, Marriot, Whittall, & Harmer, 1991; Johnson & Foley, 1984; Kaplan, 1990; Perry & Wrightsman, 1991; Spencer and Flin, 1990). In fact, children have been found to have a less developed capacity to fabricate as compared to adults, particularly concerning sexual topics. A child, more than an adult, lacks the knowledge or cognitive ability to construct a believable false statement and to maintain conscious fabrication over time (Goodman, 1984; Yates & Musty, 1988). Spencer and Flin (1990) suggest that the cognitive and imaginative capacities of young children do not enable them to fantasize about sexual episodes and to confuse these fantasies with reality, particularly in the explicit detail in which they describe what they have experienced. In fact, these same researchers report that child witnesses are often more truthful than their older counterparts. Although imagination plays an important part in children's lives, they can differentiate between imagined and real experiences (Sivan, 1991).
Cross Examination of the Child Witness
In addition to proving themselves competent as a witness, children on the witness stand are also expected to provide detailed, accurate and reliable testimony during cross examination despite the use of language and tactics that may confuse the most sophisticated of witnesses. Viewing testimonial competency as a responsibility of the child alone, overshadows the fact that accurate reports are just as much "a function of the communication demands of the legal system environment" (Saywitz, 1995, p. 115). It is important not to overlook the fact that in the pairing of educated attorney vs. child witness, it is the child who is the disadvantaged communicative partner. Children are at varying stages of cognitive and linguistic development, which affect their ability to comprehend and respond to different types of adult questions or suggestions and therefore, they may be easily manipulated by the more advanced intellectual capabilities of an adult (Saywitz et al., 1991).
Despite criticisms of the adversarial system and its treatment of child witnesses, cross examination is a fundamental guaranteed right for the accused to confront accusatory witnesses, even the youngest of accusers. We are not questioning this right, but only the practice of doing so in a way that exposes the child to the same form of exploitation by an adult that the trial itself is intended to redress.
The purposes of cross examination of any witness are twofold: to elicit testimony favourable to the cross examiner's theory of the case, and to undermine direct testimony by challenging the witness' credibility and/or statements under direct questioning (Myers, 1987). Defense attorneys' have developed some specific means for achieving these purposes including: 1) asking questions that are confusing, leading, ambiguous, and compounded, 2) harassing the witness, 3) asking questions concerning irrelevant or collateral matters, and 4) asking questions beyond the developmental comprehension of the child witness (Perry & Wrightsman, 1991). The two practices that are most successful in undermining children's credibility are the use of leading questions and asking questions that are developmentally inappropriate.
The Use of Leading Questions & The Issue of Suggestibility
Suggestibility is defined as the degree to which the report of an observer changes after a witnessed event to include information that was not present during the event (Penrod, 1989). Although the factors that lead to suggestibility are many and complex, leading questions are one of the most powerful means of influencing the testimony of children and adults alike. Research has shown that leading questions can distort witnesses' memory of an event (Goodman & Aman, 1987; Loftus and Palmer, 1974; Smolensky & Goodman, 1987; Spencer & Flin, 1990), and the effect of such post-event misinformation on memory has been found to be robust (Weingardt et al, 1994).
It is for this reason that severe limits are placed on the examination of children during police investigations to ensure that their statements are not influenced by investigators (see Kuehnle, 1996 and Hornick & Paetsch, 1995, for protocols). However, once the trial process begins, the concern for influencing a child's testimony appears to be forgotten. Lawyers seem to be free to "trick" children into responding inaccurately through the use of leading questions in the courtroom. Unfortunately, leading questions appear to be the norm in our judicial system rather than the exception (Cassel, 1991; Eugenio, Buckhout, Kostes, & Ellison, 1982).
The memories of both children and adults are vulnerable to the suggestions proposed in leading questions, particularly after a long delay following the original memory (Loftus, 1979). Considering that delays between courtroom appearances and sexual victimization experiences may be weeks, months, or years for child witnesses (Farrell, 1981; Hunter, 1985; Weinberg, 1955), the courtroom can be an ideal forum for the acceptance of suggestion. This is especially true of peripheral detail (Loftus, 1979; Goodman & Reed, 1986), and questioning environments that are intimidating (Ceci, Ross, & Toglia, 1987; Lepore, 1989). Thus, the Canadian courtroom, comprised of long delays as well as an accusatory climate involving forceful and repeated interrogation, can be highly damaging to children's testimony. As a result, the child witness may lose the protection afforded children outside the courtroom and subjected to a secondary form of abuse through the very process designed to protect them.
Developmental Comprehension of Dates, Times, Numbers, and Sequences
Children cannot give reliable answers to questions concerning dates, times, numbers, and sequences until early adolescence. Developmental psychologists, including Jean Piaget (1970), have documented this fact and posited theories to explain human cognitive development (Brigham, Vanverst & Bothwell, 1986; Davies, Stevenson, & Flin, 1988; Davies, Tarrant, & Flin, 1989; Friedman, 1982; Piaget, 1955; Saywitz et al., 1991). Intellectual development appears to take place in stages such that children initially come to understand a concept such as distance (Goetze, 1980; Rudy, 1986) first in its qualitative form (near, far), then in its representational form (farther than, nearer than), and only finally in its quantitative form (inches, kilometres). The order of the succession of these stages is constant and ages of attainment can vary within certain limits (Inhelder & Piaget, 1958). Further, the transition from an earlier stage to a later stage follows a process of integration where proceeding structures become a part of later stages (Cohen, 1983; Furth, 1969; Piaget, 1970).
It is also important to note that the development of concepts and structures are subject to a ceiling in their complexity at any age, even under optimal conditions. These ceilings are due to the existence of age related organismic constraints that apply across the entire psychological system (Case, Okamoto, Henderson, & McKeough, 1993). Therefore, when a child is asked to answer a question in the courtroom involving the estimation of time in minutes or to provide the number or sequence of events before he or she has attained that stage of comprehension, the child is simply incapable of responding. No matter how simply the question is structured linguistically, the accurate answer cannot be produced. These constraints change only gradually with development, as they do, children's optimal performance changes too (Case et al., 1993).
In our empirical research program (see Park & Renner, 1998) we have examined the content of 58 transcripts for the types of questions asked of child witnesses aged 4-13. We found in all of the individual cases that the lawyers, particularly the Defense, consistently exploited the children by asking them questions beyond their cognitive comprehension. These children were held accountable for providing detailed, accurate and reliable testimonies during direct, and particularly cross examination, despite the use of developmentally inappropriate language and legal tactics by attorneys. In essence, the children were expected by the court to provide capable testimony when the questions asked of them where beyond their comprehension.
As part of testifying, children are often asked to estimate the time of an occurrence or to provide the number or sequence of events to which children respond with silence, "I don't know" or when pressured to respond by counsel, an inaccurate response. As examples:
What day did you go to the beach?In a courtroom, silence, "I don't know" and errors of compliance are a sign of witness incompetence. Yet, most often the dates, times, numbers, and sequences that children are asked about have no relevance to the case, most certainly not about the nature of the sexual contact that took place. The purpose of these questions seems to be to instill doubt concerning witness competency and to bring into question the integrity of the child's testimony, as noted by Saywitz (1995, p.120):
How many minutes, outside of these ten do you estimate you were alone in the living room with Mr. Peters?
How often would you stay over at the Ross' when you were 9?
On Jan 10, 1995, was that the last time you spoke with your father?
How big is the living room at Mr. Hart's house?
Do you remember what day of the month it was?
Did the incidents occur on the evenings that you watched Dallas?
Although trial Judges have discretion to control the use of such questions, they are not required to do so. Most court officials appear to subscribe to the belief that "cross examination is the greatest touchstone of truth ever devised" (McCormick, 1984, p. 247). Often the overriding importance of cross examination impels courts to permit questioning beyond the boundary of propriety which can lead to a miscarriage of justice."Questions [such as these above] become problematic when
they require skills children have not yet developed. The degree
to which the content of the question matches the child's stage of
cognitive development affects the accuracy of the responses.
Children may try to answer a question even when they lack the
necessary skill, and the resulting misinterpretation of their answers
is perceived by adults as an indication of their incompetence."
The historic purposes of cross examination are not served when children are the targets of age inappropriate legal tactics. "The credibility of the child as a witness hinges not upon the accuracy of the account given, but upon whether the child is able to understand the questions posed" (Saywitz, 1995, p.114). It is only logical, therefore, that the protection children should be afforded is to ensure that the questions they are asked do not exceed their level of mental development. Failure to do so would be similar to asking an adult a question in a foreign language they did not understand. In both cases, the failure to understand the question does not reflect upon the capacity of the person, only the inappropriateness of the question. In either case it would be foolish to conclude that the witness was not able to provide reliable information.
Reliability of Evidence
In matters of witness testimony it is the reliability of the information that is central. Reliability is a well understood quantitative concept. Similar to a thermometer, a witness is an instrument for providing a data point. In science, we do everything possible to enhance the reliability of every measurement, and therefore the confidence we may have in the reading. This is done through eliminating every known source of contamination or extraneous influence. Why would the courts do anything less? Justice requires that every precaution be taken to provide reliable information and to avoid and protect against all known or potential sources of error.
For the courts to obtain reliable information from the child it is essential that questions be asked during cross examination which the child is developmentally capable of answering. These answers may then be evaluated as is all other evidence. Furthermore, the procedure of having sworn testimony or the promise to tell the truth contributes nothing to the reliability of the testimony. It is totally irrelevant to place a "threshold" on the child as to whether or not they can give reliable testimony. The "threshold" must be placed on the questions asked of children in the courtroom. This is the only way the court and legal doctrine can ensure reliable information. It is a simple acknowledgment of the fact that the witness is a child, and it can only afford the child the protection necessary by requiring that the child be able to understand the questions which are asked. In this way reliability of information is ensured.
Finding a Solution
As children age, they develop more complex concepts, skills, and capabilities. In other words, a linear evolution exists in children's abilities to comprehend time or think diachronically or estimate distances. The advantage of linear cognitive development is that a child's grasp of a particular cognitive concept may be measured and with this knowledge, the child's cognitive threshold of comprehension can be respected in the courtroom.
The appropriate way for the court to proceed is through a pre-court assessment of the mental level of the child. With such a pre-test, there would not be any confounding of the child's testimony, as can be the case now with suggestive and leading questions by the defense, both at the preliminary hearing and again at the trial, about the events in question. An assessment of the child's cognitive ability would establish the restrictions to be placed on the format, complexity and wording of the questions which may be asked.
The Judge has a clear role to play in child sexual abuse cases. The requirement is to watch over the proceedings to enforce a form and level of questioning that is consistent with the child's cognitive abilities. The witness is a child, and must be afforded the same protection by the court that is afforded to all children by virtue of being a child. The court itself, as well as its adult agents, cannot become a party to victimizing the child with a new form of exploitation. It is the responsibility of the adult not to sell children cigarettes or alcohol; so to is it the responsibility of the adults in the courtroom not to exploit the mental level of the child, just as children are not to be sexually exploited by adults under any circumstance.
This is not an impossible or even particularly
difficult task. From our research noted earlier, we found the occasional
Judge will try to do the very things we are suggesting:
Judge: You have asked three questions in one, Mr. G. I'm having difficulty with the questions. I'm allowing all the leeway in the world, but you are still dealing with a young lady, and I think the question should be simple.
Defense: I will make them very simple.
Judge: This witness is frightened of testifying.
Defense: That is what is going to happen if I make them simpler. She's going to cry and we're going to be stopping and stopping and stopping.
Judge: Well, it would certainly be better to make the questions simple so that the witness could answer.
The task of the Judge can be made far simpler by providing guidelines for what type of questions are appropriate. And, the experience of the child can be improved by simply putting an end to developmentally inappropriate questions and enabling them to understand the questions posed to them in the courtroom.
The current legal doctrine has not only failed to protect children, but has actually subjected them to a secondary form of abuse through the very process designed to protect them. Clearly, a new round of law reform is needed. The problem is with the legal doctrine itself, and it is fundamental.
The rules of evidence are simply that; they are rules. They are arbitrary procedures put in place to try to ensure that the courts render decisions based on objective, factual information. If those rules are known to consistently fail to protect the integrity of the evidence in child sexual abuse cases, then it is necessary to change the rules to fit the children, because the children cannot be changed to fit the rules. As long as the fundamental principle is that the evidentiary rules should be truth seeking, not truth destroying, appropriate standards easily can be set for gathering testimony from children (Young, 1992).
The changes required are not large. There is nothing wrong with asking a child to promise to tell the truth. Even small children understand this promise. Further, children are less able than adults to deliberately lie and to fabricate; they are less likely than adults to have elaborate ulterior motives. The innocence of children that needs the special protection of the law is just that, innocence.
Once the court has relinquished the arbitrary notion and embraced the simple psychological fact that children have not yet achieved the same level of mental development as adults, the standard that needs to be applied is to ensure that the questions are developmentally appropriate. The child sexual abuse law states quite simply and directly that it is an offense for any adult to sexually exploit, interfere, or touch a person under 14 years of age. The rules of evidence need only to place similar restrictions on the legal doctrine with respect to violations of the child's mental capacity. A violation of a child's capacity for independent judgment and decision is a violation, whether physically at the hands of the offender, or verbally at the hands of the court.
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1. The authors would like to acknowledge the assistance of Karen Menard and Kara Dubeau who assisted in the collection of the research material used in this paper as part of their undergraduate theses at Carleton University.
2. The qualitative arguments set forth
in this paper are the conclusions we have reached after examining over
1,000 court case records, the quantitative analysis of which has been reported
in a series of empirical publications (Yurchesyn, Keith & Renner, 1992;
Renner, Alksnis & Park, 1997; Renner & Park, 1997; Park & Renner,
1998). The examples presented in the text are drawn from this data base.