Evaluating Sexual Abuse Reports in Family Court
One of the most difficult issues which can confront parents, counselors, attorneys and judges is the concern that a child has been sexually abused. Evaluating an allegation against a parent is especially difficult in the context of separation or divorce. The child's statements and behavior may be responses to the stress of the divorce and wrongly interpreted as sexual abuse. Or true sexual abuse reports may be wrongly discounted as a weapon in the divorce conflict.
I have handled several cases with sexual abuse reports as a family law attorney and as a superior court mediator. In one family court case, over a 12-month period there were nine hearings involving seven different judges, a psychological evaluation, professionally supervised visitation and no finding of sexual abuse. In another case, there was an extensive evaluation by a university department, considering many theories and a finding of sexual abuse. Unfortunately, many cases reach less clear results, and drag on for years.
With training, these cases can be more quickly and clearly resolved. To this end, I have provided seminars for CPS workers and in 1997 I co-wrote a 60-page Proposed Family Court Protocol with my colleague, William Benjamin, CFLS. The following is a summary of my on-going review of the research and recommendations.
No Assumptions
Reports of child sexual abuse (CSA) are made in only a small
percentage of divorce cases, according to the most extensive study of
this issue in 1989 by Thoennes and Tjaden. They found that half of the
reports in divorce cases were confirmed to be true, a third were confirmed
to be untrue, and the rest were unclear. With lying increasing in society,
half may be untrue now. Therefore, one cannot safely assume a report is
probably true or probably not true. An assessment of several factors and
theories must occur.
Until the 1980's, it was generally assumed that CSA allegations were not true. Children's testimony was considered unreliable. During the 1980's and early 1990's, children's advocates properly persuaded the public and law-makers that child sexual abuse is a real and serious problem. However, the pendulum swung too far. Most reports were assumed true and children's statements assumed accurate.
By the mid-1990's, research confirmed that children
are suggestable and may wrongly confirm the investigator's theory of a
case. After a landmark 1994 New Jersey Supreme Court case, several convictions
were overturned because of this "confirmatory bias" by investigators.
Now interviewers must be careful to avoid "tainting" the child's statements.
Five Theories of CSA Reports
There are at least five possible explanations or theories to be considered when there is a child sexual abuse report in a divorce case. An investigator must keep an open mind in gathering evidence, and explore all theories.
Pre-existing Abuse
In some families there has been on-going sexual abuse. Its discovery may
be the reason for the divorce. It is also possible that it was not discovered
until the divorce process began, because the child may not have felt safe
to disclose it until the parents were separated.
Divorce-Related Abuse
Sexual abuse may occur for the first time after the separation of the
parents. The abusing parent may turn to the child for emotional/physical
needs, or suppressed sexual urges may no longer be controlled by the presence
of the other parent.
Sincere-But-False Allegations
Researchers indicate that the majority of false allegations are sincere.
A parent may misunderstand or overreact to vague distress or ambiguous
statements by a child. The stress of going from one tense parent to another
at the beginning or end of visitation may be misinterpreted as abuse.
Intentionally-False Allegations
Some parents falsely report abuse in order to obtain an advantage in court,
such as a change of custody or a significant reduction in the other parent's
contact with the child. They may knowingly represent the child's anxious
behaviors as signs of sexual abuse.
Sexual Abuse by Someone Else
There may be sexual abuse actually occurring, but by some other adult
-- or even another child (often with an abuse history of their own). A
young child may be frightened or confused and indicate that it is their
own parent instead of the actual abuser.
Many Factors to Consider
There is no single factor that is conclusive for the presence
or absence of child sexual abuse by a parent. Researchers have found that
several child behaviors are common symptoms of emotional distress, which
may simply be a response to a difficult divorce. Examples are: bed-wetting,
nightmares, clinging, constipation and even redness in the genital area
(often related to normal bathing issues).
On the other hand, researchers have found that only
about 30% of confirmed true cases of child sexual abuse have medical evidence.
Therefore, the absence of injury or medical evidence cannot be used as
proof there is no abuse.
Gathering Evidence
Since there is no single factor which is conclusive, anyone investigating a report should look at the context and totality of the evidence available.
Many Sources
Any investigation of child sexual abuse should include information from
several sources. This would include others who know the child and/or the
parents, and their patterns of functioning and behavior. Mental health
professionals doing custody and visitation evaluations are required to
obtain information from more than one source.
Interviews With the Child
This has been an area of great controversy and much research in the past
few years. There is now growing agreement among researchers that the way
a child is interviewed can significantly influence their answers. Therefore,
most professionals now know what "leading questions" are and that they
should be avoided. Leading questions suggest a specific answer, or highly
limited choices. Until recently, these were commonly used.
Use of Anatomical Dolls
Professionals remain split over the use of anatomical dolls. Some say
that they are necessary to elicit information from very young children,
while others say they are still too suggestive. When they are used, more
careful procedures have been developed in recent years. Drawings are also
used. The key point is that these tools are used to confirm or elaborate,
and not used as the initial or primary basis of an evaluation.
Parents Should Avoid Questioning Child
A child's answers can be influenced by the way their parent (or any other
adult) asks them questions, and these answers can become part of their
memory. This can permanently "taint" the child's report, resulting in
a true report being thrown out or a false report being prosecuted. If
a parent has concerns that their child has been sexually abused, they
should immediately contact a professional -- ideally one trained in identifying
the presence or absence of sexual abuse: their therapist, attorney, or
CPS.
Relationship with Child
Interviewing the child with each parent reveals a great deal about the
report of abuse in a divorce case. Is the child comfortable or uncomfortable
being with the accused parent? Is the child comfortable or uncomfortable
being with the accusing parent? Does the child show anxiety during visitation
exchanges, but relax with one or the other parent alone? Is the child
over-involved with either parent's emotional needs? Does either parent
have age-inappropriate expectations for the child?
Timing of the Report
Does the report coincide with a benefit or disturbing event for the reporting
parent? If so, it increases the likelihood it is false -- if not, it may
be true. In a divorce case, it is easy to determine if there is a hearing
pending, a custody battle, or a major financial decision to be made. Sometimes,
a former spouse's re-marriage or new baby may trigger a report. If there
is no related event and the report embarrasses or harms the accuser, it
may be true.
Family Court Decision-Making
Courts are faced with two conflicting concerns
Immediate protection of the child and obtaining an objective evaluation.
At times, professionals have prematurely reached incorrect conclusions
in their efforts to make quick decisions. The following is based on our
Proposed Protocol:
Protection of the Child
To be intially safe, a court should order supervised visitation -- without
forming any judgment about the underlying report. "No Contact" orders
are to be avoided, because supervised visitation is usually sufficient
for the child's safety and the accused parent should be observed with
the child as soon as possible.
Gathering Evidence
Investigators (CPS workers, police, therapists) should gather as much
information as possible without forming conclusions. This information
should be readily accessible to attorneys for the parties.
Evaluating Evidence
A well-trained psychological evaluator should evaluate the family, and
examine the information gathered from all sources. Only then should a
recommendation be made to the parties and to the court.
Making a Finding
The court should reach as clear a conclusion as possible. It is recommended
that the court make a finding about the likelihood that abuse occurred
or that a false allegation occurred. By avoiding a conclusion, families
have often remained in long-term chaos and continually return to court.
A case should be examined until the pattern of evidence is clear enough
to make a judgment.
Orders and Treatment
Regardless of whether there is evidence of sexual abuse or false allegations,
the family is seriously in need of help. Long-term orders should be made
to address the dysfunction in the family, including counseling for the
child and the parents. Consequences are also important. If there is likely
abuse, then there should be a criminal investigation. If it appears to
be a knowingly false allegation, then sanctions should be imposed.
Training
In the past five years there has been a great deal of
new research in objectively evaluating child sexual abuse reports. With
on-going training for court-related professionals and more parent education,
our society will better protect children from the serious harm of sexual
abuse while avoiding the serious harm of making mistakes.
A Few of the Many Good Resources Available
Child
Maltreatment: Journal of the American Professional Society on the Abuse
of Children, SAGE Publications (Quarterly Journal since 1996)
Journal on Child Sexual Abuse, Haworth Press (Qtrly issues)
Jeopardy in the Courtroom, Ceci and Bruck, APA, 1995
True and False Allegations of Child Sexual Abuse, Ney,1995
Inaccuracies in Children's Testimony, J. Meyer, 1997
Interviewing for Child Sexual Abuse: A Forensic Guide (Videotape),
Kathleen C. Faller, Guilford Press, 1998.
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