This publication describes the mechanisms through which the "discounting" takes place in child sexual abuse cases.
The Failure to Acknowledge Differences
in Developmental Capabilities
Leads to Unjust Outcomes for Child Witnesses in Sexual Abuse Cases
K. Edward Renner
Department of Psychology
Court records of 58 examples of child sexual abuse testimony were examined for the sensitivity of the court in acknowledging the differing developmental capabilities between child and adult witnesses. Children were frequently asked developmentally inappropriate questions. These questions either exceeded the children's cognitive threshold of comprehension, or failed to respect the fact that children are not responsible for their sexuality by the definition of being a child. The Canadian legal system fails justice to the extent that it holds the child responsible for providing accurate testimony, but fails to ensure that procedures are used which recognize the developmental capabilities and the non-sexual status of the child witness.
Every year thousands of children in North America become entangled in
the criminal justice system and many of these children must testify at
their own sexual abuse trials. Ceci and Bruck (1995) estimated that well
over 13,000 children testify each year in sexual abuse cases in the United
States alone, and that many thousands more give depositions and unsworn
statements to law enforcement officials. Although there is some debate
over the prevalence of child sexual abuse in Canada, Finkelhor's (1994)
evaluation of the existing data (Badgley, 1984) suggests that the number
of adults in the population sexually abused as children is high (30 sexual
abuse victims per 100 of the Canadian population; ). These data reflect
a serious social problem. The gravity of the problem is further highlighted
by the fact that the number of official reports of child sexual abuse have
increased dramatically in both the United States and Canada (American Humane
Association, 1988; Rogers, 1990) with estimates of a 2,000% increase in
the past two decades. Researchers believe that these large figures reflect
mandated reporting in North America and increased education and understanding
of the prevalence of childhood sexual abuse (e.g., Ceci & Bruck, 1995).
The legal system, however, has failed to show a corresponding change
in sensitivity to the treatment of children entering the criminal justice
system to testify concerning their sexual abuse experiences. Although there
have been attempts at reform to meet the needs of child witnesses in the
courtroom, such as allowing the child to testify behind a screen or through
a pre-recorded video, these procedures have not been widely used (Hornick
& Bolitho, 1992). In fact, many children are pushed beyond their level
of competence on the witness stand, as was found in a longitudinal research
project which followed the experiences of 126 child witnesses (London Family
Court Clinic, 1993).
In cases of alleged sexual abuse, children
are often the only sources of vital information. Rarely, is there physical
evidence or an adult witness to verify a child's report. Without physical
evidence, legal professionals rely heavily on children's testimony to discover
the truth (Renner & Park, 1997; Saywitz, 1995). Children bring both
capabilities and limitations to this task. Children's developmental
constraints often translate into an inability to understand court proceedings,
legal terminology, and complex questions during examinations.
Many lawyers have capitalized on these known weaknesses of child witnesses
in testifying as a means of negating children's credibility and for suggesting
that the children cannot be believed beyond a reasonable doubt. As
a result, child witnesses face many hardships as part of their participation
in court (Ceci & Bruck, 1995; London Family Court Clinic, 1993; Whitcomb,
Runyan, DeVos, Hunter, Cross, Everson, Peeler, Porter, Toth, & Cropper,
1991). Saywitz (1995, concluded that "The
use of courtroom methods of collecting evidence are inimical to the developmentally
sensitive process necessary to elicit information from children and thus,
reduces the optimal level of children's responses" (p.114).
The Dual Nature of the Problem
There are two issues which are typically confounded in the courtroom testimony of the child witness. The first concerns the capacity of a child to accurately remember and report on a past event. The second concerns whether the methods used in the courtroom to elicit the information are appropriate. Just as the failure of an adult to answer a question asked in a foreign language does not mean the adult does not remember the event in question, a question asked in a form a child cannot understand does not mean that the child does not remember the event.
The practice of cross-examination exemplifies the inability of the court
to manage cases in which children are witnesses. "For two centuries, common
law judges and lawyers have regarded the opportunity of cross-examination
as an essential safeguard of the accuracy and completeness of testimony,
and they have insisted that the opportunity is a right and not a mere privilege"
(McCormick, 1984, p.47). During cross-examination the goal of the Defence
is to discredit and undermine the witness through strategic questioning.
As a result, lawyers frequently ask questions of child witnesses that are
beyond their current developmental level. Lawyers
are notorious for using large vocabulary, compound sentences, asking questions
requiring advanced reasoning skills, and asking for ratio measurement estimates
(Renner & Park, 1997; Saywitz, 1995). The confused children
often respond with silence, "I can't remember," or, when pressured to respond
(for example, "Well, which is it?"), with errors that result from compliance
with the demands of an adult authority to pick between two alternatives.
In a courtroom, the lack of a response, saying "I don't know," or errors
of compliance, are perceived as evidence of the child's incompetence as
Saywitz (1995) argues that children's apparent
lack of credibility "has as much to do with the competence of adults to
communicate effectively with children in the courtroom as it does with
children's abilities to remember and relate their experiences accurately"
(p. 115). Similar conclusions were reported by Renner and Park (1997) who
suggested that the capacity of the child to accurately remember and report
on a past event was confounded with the inappropriate methods used in the
courtroom to elicit the information. Clearly, the tactic of asking
developmentally inappropriate questions of witnesses does not prove that
the children are incompetent or unreliable witnesses concerning the details
of their sexual abuse; rather, it highlights the inappropriateness and
insensitivity of such legal practices. It is in the sense of allowing inappropriate
questions in the search for "truth" that the court may become party to
the destruction of valid evidence. Any question or standard that is beyond
the comprehension of the child is prima facia evidence of injustice, because
it restricts the possibility of the discovery of the truth. The goal of
the legal process should be to ensure justice by using developmentally
appropriate means for ascertaining the truth from child witnesses.
The Role of Developmental Psychology in Solving the Problem
Numerous research studies have shown that children have the capacity
to accurately recall past events (Fivush & Hammond, 1990; Flin, Boon,
Knox, & Bull, 1992; Hammond & Fivush, 1991; Goodman & Reed,
1986; Peterson, 1996; Spencer & Flin, 1990), and not to imagine events
which did not happen (Johnson and Foley, 1984; Harris, Brown, Marriot,
Whittall & Harmer 1991; Sivan, 1991; Spencer & Flin, 1990), if
their developmental capabilities are respected. The basic conclusions from
the developmental psychology literature are that as children age, they
develop more complex concepts, skills and capabilities. For example, Rosser
(1994) and Alyman and Peters (1993) found that children's spatial ability
will follow a linear evolution such that older children are more capable
of making height, weight, or size estimations than younger children. A
similar linear trend exists in children's comprehension of time (Levin,
1992; Levin & Simons, 1986).
However, these skills and concepts are subject to a ceiling in their complexity at any age. These ceilings are due to the existence of age-related constraints (for example, limited short term memory) that apply across the entire psychological system (Case, Okamoto, Henderson, & McKeough, 1993). As a result, many cognitive concepts appear to mature 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). These developmental levels are summarized in Table 1. The constraints change only gradually, and as they do, children's optimal cognitive performance can be realized (Case et al., 1993).
For younger children (under the age of 6 to 8 years), and especially
very young children (3 to 6 years of age), all such references to complex
frequency, time, distance, and space relationships should be avoided (Goetze,
1980; Rudy, 1986). Seldom is such detailed information from a child witness
crucial to whether the sexual abuse took place. Even young children (ages
3 to 6) have the capacity for images and for making correct identifications,
but do not have the capacity to arrange information into logical cause
and effect sequences (Montangero, 1992, 1993), or into temporal or spatial
patterns (Piaget, 1926; Price & Goodman, 1984).
The studies of courtroom communication
and its mismatch with children's normative cognitive development suggest
that often questions are asked in language too complex for children to
comprehend about concepts too abstract for them to understand (Saywitz,
1995, p.125). In these cases, the court must restrict the questions
to the level of testimony that the child has the developmental capacity
to give. Child testimony would then be given greater consideration and
the child would be less vulnerable to being exploited by the Defence. Such
restrictions avoid confounding the limitations due to the ability of the
child with distortions and errors introduced by the court process. A child's
lack of capacity to provide some types of complex information should not
be taken to mean that the facts that can be given are not trustworthy.
Purpose of the Present Study
The present paper explores the proposition that the Canadian legal system may be insensitive to the child witness. If the court fails to acknowledge the differing developmental capabilities of child and adult witnesses, this may prevent children from furnishing accurate and complete evidence which they are able to give. Because the system of justice used in Canada today was designed for adults it may not be adequately prepared to handle cases in which children are involved as witnesses.
To assess whether the Canadian legal system overlooks the developmental
capabilities of child witnesses, the official public court records and
the content of the actual testimony of 58 child sexual abuse victims were
examined from 54 cases from the Halifax court system (In four cases, the
testimony of two child witnesses was presented.). Twenty-nine cases were
available on audio tape and written transcripts were provided for the remaining
25 cases. The court records provided factual information about the dates,
times, places, evidence, offender and victim characteristics, details of
the charge, and the verdict and sentence. The coding
system used for the court records has previously been applied to both child
and adult cases of sexual assault (see Yurchesyn, Keith, & Renner,
1992; Renner & Yurchesyn, 1994; Renner, Alksnis, & Park, 1997).
The process of coding the child testimony involved reading each transcript
or listening to each tape with a predefined list of 22 categories of questions
and tactics that might be used by either the Crown or the Defence, for
a total of 44 separate scoreable activities (Renner, Parriag & Park,
1997). These categories reflect an exhaustive list of themes and tactics
used by courtroom officials as identified in the previous research (Yurchesyn,
et al., 1992; Renner & Yurchesyn, 1994; Renner, et al, 1997).
Specifically, the coder placed a tick mark on the summary data sheet whenever
a run of questions matched one of the predefined categories. For example,
if the Crown asked about when the child told someone of the abuse, a check
mark was made under "Recency of Report/Crown," and so on for each category
for each lawyer. Eight of the 58 cases were scored by two independent raters;
inter-rater reliability for these cases was 80%. Of particular interest
to this study were seven of the 22 categories dealing with fixing responsibility
for sexuality (see Table 2).
An additional analysis involved reviewing the audio tapes and transcripts
qualitatively for incidents of developmentally inappropriate courtroom
practices. For this analysis, the number of cases was restricted to 29
in which the children were 4 to 13 years of age. As most cognitive abilities
(e.g. number knowledge, height estimation, comprehension of speed, etc.)
become more fully realized by the ages of 14-16, the issue of developmentally
inappropriate questions was of particular concern for children in this
younger age range. All examples of questions involving time, distance and
size estimations were transcribed for subsequent categorization according
to whether the child witness was old enough to have mastered the cognitive
task which the court was asking him/her to perform. For example, research
suggests that children are unable to provide accurate quantitative information
concerning time estimation before the age of 13 or 14 (Levin, 1992). Therefore,
the testimony of children younger than 14 who were asked to provide time
estimations was transcribed and the frequency of inaccuracies and/or errors
of compliance, "I don't know" responses, or no responses at all were recorded.
Ten of the 29 cases were scored by two independent raters; the inter-rater
agreement for identifying instances of developmentally sensitive questions
The transcriptions of these scenarios relating to time, distance, and
size estimations provided an initial pool of material from which to evaluate
the frequency of these lines of questions, and to make judgements on the
basis of Table 1 about their appropriateness for the developmental level
of the child. This procedure was primarily qualitative, although simple
descriptive quantitative statistics resulted. Because the search was limited
to only a few developmentally sensitive categories this material was by
no means exhaustive. In fact, many other examples of potentially developmentally
inappropriate questions and tactics were identified, such as asking the
child to provide height or speed estimates. In other cases, harsh and intimidating
methods were used to reduce a child to tears, at which point further information
was not forthcoming; the lack of response was then used to argue that the
child did not have the capacity to provide reliable testimony. This expanded
range of examples was also transcribed to provide a broader set of materials
for developing a more inclusive conceptual framework for future research.
Thus, the qualitative data to be summarized in this paper is a small portion
of the range of material potentially available. Each case contributed to
this collection of scenarios; the examples are pervasive and representative
of children's experiences in court.
Description of the Cases
The quantitative coding of the court records documents showed that the
accused was charged with Simple (Level I) Sexual Assault under the Criminal
Code in all 54 cases. This is the least serious charge, and is laid when
there is no physical harm to the victim and when no weapon was used (Level
II), and when the victim's life was not endangered (Level III). This finding
is not unusual as child sexual abuse cases are frequently under-charged
(Roberts, 1990) which most often occurs if the Crown does not have extensive
corroborative evidence, as is often the condition in child cases. The lower
charge level, however, does not prevent the Crown from introducing evidence
or claiming harm through the testimony of the witness during the trial.
Using this more liberal standard, some form of physical harm or threat
of harm was claimed in 9 cases (15%) and some actual injury in 2 cases
(3%). In seven of the nine cases the child was over 13 years of age, thus
moving into a gray area where witnesses who are legally children are treated
increasingly like adults (Renner, et al, 1997).
This data is consistent with the child sexual abuse literature indicating
that little violence or injury is needed to coerce children into participating
in sexual acts with adults (Rogers, 1990). The perpetrator's greater physical
size, power, and authority are usually sufficient to coerce young children
and prevent disclosure.
Does the Court Show Respect for the Developmental Level of the Child Witness?
There are two ways in which the current court procedures fail to show
respect for the developmental capabilities of the child witness. The first,
is to ask age inappropriate questions the child can not be expected to
answer; these forced errors are allowed by the court and are used as the
basis for discrediting the testimony of the child. The second, is the content
of the questions which indirectly holds children responsible for their
sexuality, which should never occur because the law explicitly forbids
an adult from having sexual contact with a child.
Sensitivity to Cognitive Developmental Stages. Qualitative analysis
of the data revealed that developmentally inappropriate questions were
asked of all the child witnesses aged 4-13 for the three cognitive concepts
examined. Fifty clear examples of inappropriate lines of questioning were
found where the child's "ceiling" of comprehension for size, distance,
and time estimations were exceeded. Not surprisingly, in these instances
the children consistently failed to respond, made errors, or said, "I don't
know." Examples of these questions included asking an ten year old to indicate,
"How wide the windows were at a Pizza Joe's" and when no answer was forthcoming,
"Compare it to the screen in front of you. How wide would the windows be
in comparison to the screen?" Similarly, an eight year old was asked, "Do
you know how long it was the day before you went downstairs to get the
bicycle horn that you had last seen Mr. R.? The question is convoluted,
compounded and requires quantitative thinking skills that could only be
reasonably expected of a teenager or adult.
A skilled Defence attorney will always ask a series of such seemingly
reasonable, yet developmentally inappropriate questions at the preliminary
hearing and at the trial to encourage conflicting or inaccurate responses.
Any discrepancies will be noted, and used to impeach the child witness
as illustrated in the following example:
Defence (D): You've known Doug for a couple of years.
Child (C): No
D: You didn't?
D: Are you sure about that?
D: It was just a month or two prior to this thing having taken place that you first knew Dougy, isn't it.
D: Could you go to page 1 of your statement please, David?
D: Right in the middle there is a question that says, When did you first meet Dougy?
D: And is your answer, last month was the first time that I went to his house. Right?
D: And the next line reads I knew him for a couple of years before that. Doesn't it?
D: So you lied to the police!
C: ...(no response)
D: or are you lying to us?
D: Well, you can't have it both ways David!
In this example the issue is not one of lying, rather the discrepancy
is the result of a child complying with the demand of an adult to answer
a developmentally inappropriate question involving quantitative units of
time. The court provides a legally permissible way for the Defence to abuse
the child by allowing inappropriate questions. Seldom, if ever, are numerical
details, or the physical size of the widow at Pizza Joe's, relevant to
the central issue of whether sexual abuse took place. Rather, these numerical
details serve the sole purpose of discrediting a child witness by use of
the "tricks" of cross examination, pitting the capacity of the mind of
a professional adult against the mind of a child.
Interestingly, the Crown was also guilty of asking developmentally unacceptable
questions of their witnesses. For example, a ten year old child who had
been sexually abused by her father for many years was asked how long each
of the abusive incidents would last. Furthermore, one Crown attorney asked
of his eight year old witness: "How much time did all this take," thus
exposing his own witness to a continuation of a developmentally inappropriate
line of questions in cross examination by introducing a quantitative time
estimate as part of the direct examination.
The Issue of Responsibility. The tactic of asking inappropriate "objective" questions appears on the surface to be reasonable because the court has implicitly used the context of adult sexuality for trying cases of child sexual abuse. The result of such "tricks" has been to shift partial responsibility for sexuality from the accused adult to the child witness. All of the content themes found in the child cases (see Table 2) are based on "myths" about the nature of sexual assault which are used in adult cases to try to show that adult women were responsible for and/or consented to the sexual act (Renner & Yurchesyn, 1994). The assumption is made that if an adult woman did not consent, there would be physical evidence of resistance, lack of initiation, and a recent report. In a parallel fashion in the child cases, whenever possible the Crown would emphasize good adjustment before the abuse, bad adjustment after the abuse, that the accused removed the child's clothing, that the child resisted, was of good character, reported the abuse quickly, and did not initiate contact with the accused. Whenever possible the Defence would emphasize the opposite. All of these differences in emphasis between the Crown and Defence were statistically significant at p <.001 (see Table 2).
Of particular interest in Table 2 is the high frequency
of the category "No Reference," in which both the Crown and Defence selectively
pick the themes they will focus on based on the circumstances of the case.
Both use adult themes which support their position and ignore themes that
do not. Because the two largely act in a complementary fashion, the actual
trial is a script waiting to be played out based on myths about adult sexuality.
The category of resistance provides an example of
the complementary use of themes to shift some degree of responsibility
for sexuality from the accused adult to the child witness. In 59% of the
child cases, the Crown as part of the presentation made the claim that
the child offered some form of resistance. For these cases, the Defence
either ignored the claim (56%) when there was corroborative evidence, challenged
the claim (29%) by the Crown, or partially agreed with the Crown (15%).
The Defence, on the other hand, used the theme of lack of resistance in
35% of the cases, to which the Crown ignored the claim 40% of the time
(if lack of resistance was clear, such as the child returning to the home
of the accused), and challenged the claim of the Defence in only 10% the
For the theme of who initiated the contact(s) in
which the abuse was alleged to have happened, the Crown argued it was the
accused in 34% of the cases. For these cases, the Defence usually ignored
the claim (70%) or in the remaining cases argued that it was the child.
The Defence claimed that the child initiated the contact in 31% of the
cases. In these instances, the Crown only challenged the claim made by
the Defence 33% of the time. A similar pattern of results also applied
to the clothing (who removed it), recency of complaint (was it reported
immediately), character (is this a good child or a bad seed), psychological
adjustment before the incident (trustworthy child or not), and psychological
adjustment after the incident (if there was an emotional problem the abuse
must have caused it, or if there was no emotional problem afterward no
abuse occurred). There is seldom conflict between the Crown and the Defence.
Each lawyer is selective among the major themes that define adult sexuality
to either bring out the evidence if it supports their case, or ignore it
when it does not.
Unfortunately, the preoccupation of the legal process with the capacity of the child to objectively answer these types of questions has distracted attention away from the fact that these issues are irrelevant in cases of child sexual abuse. Full and complete responsibility rests with the adult to refrain from all sexual activity with a child, even if a child had removed all articles of clothing, requested the sexual abuse, and promised not to tell anyone. Of course, these conditions never apply; yet, the themes present in adult cases are used in the direct and cross examination of children. Overwhelming, both the Crown and the Defence buy into myths which effectively hold the child responsible for preventing the sexual abuse from taking place. The Crown and Defence seem to engage in a "game" in which each side highlights or ignores evidence that might support or refute their position based on a model of adult sexuality.
It is our position that the application of developmental psychology
to the legal process could result in courtroom standards that acknowledge
the differing cognitive capabilities between children and adults. Such
procedures would allow the legal process to separate two sources of potential
error that are now confounded. The lack of capacity of the child to provide
evidence must be separated from the failure to provide evidence due to
the use of questions known in advance to be cognitively impossible for
the child to answer. In short, errors forced by the court process should
not be attributed to the lack of capacity of the child to provide reliable
Application of Developmental Standards
Three exhibits exemplify how the legal process might enable children to furnish accurate testimony by respecting the child's intellectual capabilities with cognitively appropriate questions (see Table 3).
In Exhibit A, the 10 year old child's response of "I don't know" to
a question suitable for a fourteen year old is used to imply that the child
is not a reliable witness. It is highly likely, however, that this child
does not have the cognitive means to provide an estimation of distance.
All that is central to the sexual assault case is that there is a lake
to which the child frequently walks to go swimming, either alone or with
other children. If appropriate questions were asked, a clear picture would
have been received by the court of a lake frequently used for swimming
within easy walking distance, a fact that could be easily confirmed.
Due to the very young age of the witness in Exhibit B, and the fact
that time estimation skills are very fragile and/or non-existent prior
to age eight, this witness should have been asked a series of questions
which used only images or identification, such as "Did you sleep at Daddy's?,"
"Did you have supper at Daddy's?," to gauge the approximate time that the
child spent at her father's apartment without asking for time estimations.
Or, to establish previous physical presence in a location, the child could
have been shown a picture, to which the reply: "Daddy's bedroom," would
depend only on the capacity to recognize her father's home. Such appropriate
questions would then allow the adults who serve as judge and jury to make
inferences about the validity of the testimony and whether the alleged
circumstances of the case are credible.
The final example, Exhibit C, provides an illustration of what seems
like a reasonable line of questions. However, the child is caught in a
no win situation. Failure to answer the question implies that the child
is incompetent, and perhaps was never in the living room. Yet, being forced
to provide an answer before the required spatial skills are developed frequently
results in conflicting numerical estimates or an answer that can be demonstrated
to be incorrect. If all that needs to be established is evidence that the
child was in the living room, this can be verified by a descriptive account
of objects, or by correctly pointing to a picture of the living room, both
of which requires only the capacity for images, which emerges at a very
early developmental level.
What Needs to be Done?
The procedures of the courtroom need not provide the occasion, in practice,
for a secondary form of abuse, through failing to adjust procedures to
match the mental capacity of children. The discovery of the "truth" to
serve justice can never be achieved through a mechanism known in advance
to produce false, incomplete, or misleading information. We know from developmental
research that children have the capacity to remember, and that these memories
can be accurately reported when appropriate questions are asked.
The primary purpose of the legal system is to achieve justice by providing
a balance between the rights of the victim and the rights of the accused.
However, in the situation of child sexual abuse testimony, it is not a
case of two sets of rights in conflict. Rather, the court fails in its
purpose in child sexual abuse cases by obscuring the truth through legal
practices known to be developmentally inappropriate. The legal process
can be changed to eliminate the destruction of good legal evidence. This
can be done through the creation and administration of an assessment tool
designed to determine the cognitive level of the child prior to testifying,
and through the application of a standard in the form of a template that
outlines acceptable formats for questions. For each cognitive concept,
accurate testimony can be obtained from child witnesses by respecting the
child's cognitive threshold of comprehension.
For example, when a child is asked, "How big is the living room at Mr.
H.'s house?" (size estimation), or "How long did you have to put your mouth
on his penis?" (time estimation), the child must have achieved comprehension
of these concepts at a quantitative level to respond accurately. Had a
pre-court assessment of the child established that he or she had achieved
a representational comprehension of spatial ability or time estimation,
the above questions would not have been permitted in the courtroom as the
child's "ceiling" would have been exceeded. Rather, application of a developmental
framework would only permit questions which respected the child's representational
comprehension of these concepts, granting the child the opportunity to
provide accurate evidence.
Furthermore, application of standards from developmental psychology
will aid in the dispersion of the myth that children are responsible for
their own sexuality. The current legal system inverts the developmental
truth that children can give responsible testimony but are not responsible
for their sexuality. The mechanism through which the inversion happens
is the use of the context of adult sexuality as the thematic frame of reference
for child sexual abuse. This contradiction to justice and common sense
would be eliminated if the legal system were more forceful in requiring
questions to be developmentally appropriate, and in respecting that children
do not have responsibility for their sexuality.
Of particular concern is the use of inappropriate questions which demand
an answer (for example, "Well, which one is right?"). Children feel the
obligation to give an answer to such a question to comply with the demand
characteristics of the situation. While it would be possible to attempt
to train children before a court appearance to add the response category
of "I don't understand the question" to their repertoire, it would be far
simpler and more fitting to place the responsibility on the court. There
is good precedent for making the court accountable for achieving just outcomes.
For example, the court will not enforce a contract between a five year
old and an adult which exchanges the child's future lifetime earnings for
a dish of ice cream.
In order for justice to be served, a child witness must have the capacity to answer the question posed, and, by definition of being a child, must be protected against deliberate exploitation by an adult. In cases of child sexual abuse both of these fundamental principles of justice are violated by the legal process itself. Specifically, child witnesses are prevented from furnishing accurate and complete evidence. Ironically, the system designed to protect child victims of sexual abuse is, in practice, an accomplice in needlessly destroying their testimony and traumatizing the witness.
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Children's Developmental Acquisition of
Distance, Size, & Time Estimation
(use of nominal units;
Ages 8-10 )
(use of ordinal units;
(use of ratio units;
|Distance||far, near, short, or long are the words used to describe distance||farther, nearer, shorter, longer and other words are used to compare and describe distance||inches, miles, or other units of measurement are used to compare and describe distance|
|Size||big or small are the words used to describe size or area||bigger or smaller are the words used to describe and compare size or area||inches, miles, or other units of measurement are used to compare and describe size|
|Time||short or long are the words used to describe time||longer or shorter are the words used to describe and compare time||hours, minutes, seconds or other units of measurement are used to compare and describe time|
Frequency of Use of Adult Sexual Assault Themes
by the Crown and Defence
|Variable Name||Positive to
|No Reference||Statistical Test and Probability Level|
|Psych Adj Before/Crown||15 (good)||6 (bad)||34||X
2 (2,n=98) = 17.40
p < .001
|Psych Adj Before/Defence||0 (good)||20 (bad)||38|
|Psych Adj/After/Crown||24 (bad)||2 (good)||32||X
2 (2,n=98) = 17.91
p < .001
|Psych Adj/After/Defence||3 (bad)||10 (good)||45|
|Clothing Removed/Crown||18 (adult)||2 (child)||38||X
2 (2,n=116) = 18.90
p < .001
|Clothing Removed/Defence||2 (adult)||10 (child)||46|
|Resistance/Crown||34 (yes)||3 (no)||21||X
2 (2,n=116) = 34.45
p < .001
|Resistance/Defence||6 (yes)||20 (no)||32|
|Character/Crown||18 (good)||1 (bad)||39||X
2 (2,n=116) = 46.94
p < .001
|Character/Defence||0 (good)||30 (bad)||28|
|Recency/Crown||19 (recent)||29 (delayed)||10||X
2 (2,n=116) = 28.12
p < .001
|Recency/Defence||2 (recent)||32 (delayed)||24|
|Initiation/Crown||20 (adult)||3 (child)||35||X
2 (2,n=116) = 19.67
p < .001
|Initiation/Defence||1 (adult)||18 (child)||39|
Developmental Stages as a Criterion for Appropriate Questions
|Transcript||Barbara, aged 10, is asked by the Defence:
Q: How far is the lake from your home?
A: I don't know.
Q: But don't you go to the lake every day or so to
|A child, aged 5½ years, is asked by the Crown:
Q: How long would you visit with Daddy when you went to his apartment?
A: Umm. I don't know.
Q: Well, would it be a matter of minutes?
A: Sometimes, I stayed there for supper.
|Andrea, aged 11, is asked by the Defence to indicate
the size of the living room in which she was molested over a year prior
to her appearance in court:
Q: How big is the living room at Mr. H.'s house?
A: ...(No response)
Q: Perhaps if you can't tell us the measurements, you could point out an area in the court room that is similar in size.
Do you walk to the lake? Is it a short walk?
Does it take longer to walk to the lake than to walk
How many minutes does it take to walk to the lake?
Did you visit your Dad at his apartment? Was it a long visit?
Did you see your Dad longer than the time that you
spend at school each day?
How many hours would you spend at your Dad's apartment when you visited?
Have you been in Mr. H.'s
Is Mr. H.'s living room bigger than the living room
in your own home?
How many feet wide is Mr.